Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities": (a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller; (b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3; (c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof; (d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12; (e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4; (f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller; (g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval; (h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and (i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Citizens Communications Co), Asset Purchase Agreement (Citizens Communications Co), Asset Purchase Agreement (Unisource Energy Corp)
Assumed Liabilities. On Upon the terms and subject to the conditions of this Agreement, on the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller, and Seller shall deliver to Buyer, the Instrument of Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, only the following obligations and liabilities of Seller in accordance with the their respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of thereof (the following liabilities and obligations of Seller or to be assumed by Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business hereunder (other than excluding any Excluded Liabilities) are collectively referred to collectively herein as the "“Assumed Liabilities":”):
(a) all liabilities of Seller with respect to the Business reflected in the Valuation Date Working Capital as a dollar amount;
(b) all liabilities and obligations of Seller or Buyer arising on or after under (i) the Closing Date under the Assigned Seller Agreements, (ii) the Real Property Leasescontracts, agreements, commitments, understandings and instruments with respect to the Transferable Permits in accordance with Business not required by the terms thereofof Section 5.16 to be listed in a Schedule to this Agreement and (iii) the contracts, includingagreements, without limitationcommitments, the Assigned Agreements understandings and instruments entered into by Seller (i) prior with respect to the date hereof and (ii) Business after the date hereof consistent with the terms of this Agreement, except (A) in each case case, to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after default, (B) in each case, to the giving of notice or passage of time or both would constitute a default by Seller;
(b) all extent such liabilities and obligations would be required to be reflected on a balance sheet as of Seller for accounts payable the Valuation Date with respect to the Purchased Assets prepared in accordance with the Agreed Accounting Principles and were not so reflected in the Valuation Date Balance Sheet and not taken into account as a deduction in determining Valuation Date Working Capital pursuant to Section 3.3 and (C) that in the case of clauses (i), (ii) and (iii), Buyer shall only assume and discharge any liabilities and obligations arising prior to the Closing to the extent included among reflected as current liabilities in the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;calculation of Valuation Date Working Capital; and
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business8.3.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.), Asset Purchase Agreement (NantHealth, Inc.)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities Except as otherwise provided in this Agreement, subject to and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereofand provisions of this Agreement, at the Closing, Purchaser will assume the payment and performance obligations of Seller that accrue following the Closing Date under all Assumed Liabilities, which are listed on Schedule 2.4(a) to this Agreement. Purchaser shall not be liable for or assume any obligations of Seller arising subsequent to the Closing Date, or any amounts outstanding under any contracts listed on Schedule 2.4(a) which (a) have accrued prior to the Closing Date or (b) relate to businesses other than Seller’s Business.
(b) Except for the Assumed Liabilities and Purchaser’s pro rata portion of any Shared Liabilities (as hereinafter defined), it is expressly understood and agreed that Purchaser will not be liable for any obligations, liabilities, contracts, debts, claims, costs, expenses, agreements or understandings of any kind or nature whatsoever arising from, attributable or related to Seller or the operation of its Business or the ownership or use of Seller’s Assets or any Leased Premises, including without limitation (i) any such liability arising from events or occurrences prior to the Closing, (ii) any such liability arising out of the employment, terms or conditions of employment, or termination of employment of any Person, or the failure to employ any Person, (iii) any such liability for any period of time for federal, state or local taxes, penalties or interest (including without limitation any property or sales tax liability, penalty or interest) and (iv) any such liability for expenses, debts or obligations incurred within or outside the ordinary course of business. Anything to the contrary contained herein notwithstanding, Purchaser shall neither assume nor have any obligations or liabilities whatsoever in respect of any environmental matter, any immigration matter or any employment matter including, without limitation, severance, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this AgreementWARN Act, except in each case to the extent such income tax withholding, payroll and/or unemployment tax, workers’ compensation, salary or consulting fees, pension, profit-sharing, accrued, earned or unused vacation or sick leave, health insurance or any other employee or employee benefit liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 any employees, consultants or 6.10(a) hereof;
(d) all liabilities and obligations of Seller independent contractors or Buyer with respect any Employee Benefit Plan, including, without limitation any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment, withdrawal liability, liability to the Transferred Employees incurred on or after Pension Benefit Guaranty Corporation (the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances“PBGC”), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as liability under Section 412 of the Closing DateInternal Revenue Code, including but as amended (the “Code”) or Section 102 (a)(2) of ERISA or other similar liability or expense of any Seller and Purchaser shall not limited to: (i) costs of compliance (including capital, operating and other costs) relating become a party to any violation or alleged violation Employee Benefit Plan as a result of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership any of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in transactions contemplated by this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessAgreement.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.)
Assumed Liabilities. On Subject to the Closing Dateterms and conditions set forth herein, Buyer or and in reliance upon the UniSource Designee acquiring representations and warranties contained herein, at the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to SellerClosing, in accordance with consideration for the respective terms sale, assignment, conveyance, transfer and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership delivery of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities Buyer, Buyer will assume and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreementsundertake to pay, the Real Property Leasesperform and discharge, and the Transferable Permits in accordance with the terms thereof, including, without limitation, only the Assigned Agreements entered into by Seller following Liabilities of the Company incurred in the ordinary course of business (ithe "Assumed Liabilities"):
(a) prior to the date hereof and (ii) express contractual performance obligations arising after the date hereof consistent with Effective Time (other than obligations relating to those Liabilities listed in clauses (a) through (r) of the terms definition of Retained Liabilities) of the Company arising under Contracts that constitute Assets (it being understood and agreed that, except as provided in clause (c) of this AgreementSection 3.1, except Assumed Liabilities described in each case to this clause (a) will exclude any amounts due or payable as of the extent such liabilities and obligations, but for a breach Effective Time under or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out respect of any such breach or default or out of any event which after the giving of notice or passage of time or both would Contracts that constitute a default by SellerAssets);
(b) all liabilities and obligations of Seller for accounts payable Liabilities expressly assumed by Buyer pursuant to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;Article X; and
(c) all liabilities and obligations associated with Liabilities (other than those Liabilities listed in clauses (a) through (r) of the Assets definition of Retained Liabilities) which are not included in clause (a) or the Business in respect (b) of Taxes for which Buyer is liable pursuant to this Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect 3.1, but only to the Transferred Employees incurred extent and in the amounts provided for on or after the Final Closing Date Statement. The parties understand and agree that the Liabilities to be assumed under this Section 3.1(c) shall be such Liabilities to the extent and in the amounts provided for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as on the Estimated Closing Statement pending the determination of the Final Closing Date, including but not limited to: (i) costs of compliance (including capital, operating Statement and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, that Buyer shall treat such Liabilities shown on or after the Estimated Closing Date, with respect to Statement as Liabilities assumed by Buyer pending the ownership determination of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Final Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Statement. Buyer to will assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and no other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessLiabilities whatsoever.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (ORBCOMM Inc.)
Assumed Liabilities. On Subject to the Closing Dateterms and conditions of this Agreement, Buyer or Purchaser hereby agrees, effective as of the UniSource Designee acquiring the Assets shall deliver Closing, to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to pay, discharge when due, without recourse to Seller, and perform in accordance with their terms only the respective terms and subject to the respective conditions thereof, all following Liabilities of the Seller Entities and Rexam Entities (collectively, the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) any and all liabilities Liabilities arising out of or relating to the ownership or use of the Purchased Assets or the operation or conduct of the Business, in either case from and obligations after the Closing, except to the extent that any such Liabilities are Excluded Liabilities or otherwise are the express responsibility of Seller, Rexam, a Seller Entity or Buyer a Rexam Entity pursuant to this Agreement;
(b) any and all Liabilities relating to the Transferred Business Employees with respect to any period (or portion thereof) commencing on or after the Closing Date;
(c) (i) any and all Liabilities arising out of the Purchased Entity Employee Benefit Plans and (ii) any other Liabilities related to Employee Benefit Plans allocated to Purchaser as set forth in Article V or otherwise set forth on Schedule 1.3(c);
(d) any and all Liabilities to the extent (and only to the extent) required to be performed on or after the Closing Date under any Contract, Permit, approval or authorization constituting part of the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereofPurchased Assets, including, without limitationsubject to Section 1.13, any and all Purchaser Portion of the Assigned Agreements entered into Shared Contract Liabilities but excluding the Seller Portion of the Shared Contract Liabilities;
(e) any and all Liabilities for any trade, account, note or loan payables for goods or services purchased by Seller (i) prior or provided to the date hereof Business from and (ii) after the date hereof consistent with the terms of this Agreement, except in each case Closing Date;
(f) any and all Liabilities to the extent such liabilities (and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior only to the Closing Date and are not otherwise included among extent) relating to Taxes attributable or imposed on the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets Business or the Business in respect of Taxes Purchased Assets for which Buyer is liable pursuant to Section 3.4 any period (or 6.10(aportion thereof) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred beginning on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12or that are the responsibility of Purchaser under Article VI other than Excluded Taxes;
(eg) any and all liabilities, responsibilities Liabilities to the extent (and obligations only to the extent) arising out of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions any products manufactured at the Facilities on or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of after the Closing Date, including but not limited to: ;
(ih) costs of compliance (including capital, operating any and other costs) relating to any violation or alleged violation of all On-Site Environmental Laws occurring Liabilities whether arising prior to, on or after the Closing Date, with respect ;
(i) any and all Liabilities to the ownership of extent (and only to the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Dateextent) arising from Environmental Conditions out of or Releases relating to violations by Purchaser of, and/or non-compliance by Purchaser with (or, in each case, its Affiliates, including following the Closing, the Purchased Entities) of Regulated Substances atany Laws relating to occupational safety and health, on, in, under, adjacent to, or migrating from any Assets prior toincluding the Occupational Safety and Health Administration Act of 1970, on or after the Closing Date;
(j) solely to the extent provided in Section 4.7, Liabilities arising out of or relating to the Intercompany Agreements;
(k) the other Liabilities set forth on Schedule 1.3(k); and
(iiil) any Remediation and all Liabilities arising from advance trade credits and rebates (whether or not such Remediation commenced before in each case as calculated in accordance with the Closing Date Statement Methodologies) to the extent (and only to the extent) related to any Purchased Asset. Seller and Purchaser acknowledge and agree that a single Liability may fall within more than one of Section 1.3(a) through Section 1.3(k); such fact does not imply that (i) such Liability shall be transferred more than once or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (ivii) any violations or alleged violations duplication of Environmental Laws occurring on or after such Liability is required. Seller and Purchaser further acknowledge and agree that any single Liability that falls within any of Section 1.3(a) through Section 1.3(k) may also be transferred through the Closing Date with respect to the ownership of any Assets or operation purchase of the Business; (v) any bodily injury or loss Purchased Equity as well as through a separate transfer of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth Liability as listed in this Section 2.3 1.3; such fact does not imply that (A) such Liability shall require Buyer to assume any liabilities, responsibilities be transferred more than once or obligations that are expressly excluded in Section 2.4;
(fB) any Tax duplication of such Liability is required. The fact that a Liability may be imposed by any federal, state or local government on the ownership, sale excluded under one clause does not imply that it is not intended to be included under another clause of this Section 1.3. Seller and Purchaser also acknowledge and agree that (except as otherwise expressly provided in Section 3.4 or 6.10(a)1.4 and subject to the provisions of Article IX), operation any and all Liabilities of the Business or use Purchased Entities as of the Assets on or after Closing, including any and all On-Site Environmental Liabilities and Off-Site Environmental Liabilities of the Closing DatePurchased Entities, except for any Income Taxes attributable shall transfer to Purchaser by the income transfer of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessPurchased Equity.
Appears in 3 contracts
Sources: Equity and Asset Purchase Agreement (Ardagh Finance Holdings S.A.), Equity and Asset Purchase Agreement (Ball Corp), Equity and Asset Purchase Agreement
Assumed Liabilities. (a) On the applicable Closing Date, Buyer Seller shall, or shall cause the Selling Subsidiaries to, Transfer to Purchaser or the UniSource Designee acquiring Purchasing Subsidiaries, and Purchaser shall, or shall cause the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall Purchasing Subsidiaries to, assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of .
(b) Except as otherwise expressly set forth in the following Transaction Agreements, Purchaser and the Purchasing Subsidiaries shall not assume any liabilities and obligations of Seller or Buyer the Selling Subsidiaries (whether accrued, absolute or contingent, recorded or unrecorded or otherwise) other than the Assumed Liabilities, and Seller or the Selling Subsidiaries shall be responsible for all liabilities which relate toare not Assumed Liabilities, including the following (collectively, the “Excluded Liabilities”):
(i) all Excluded A/P;
(ii) all Excluded Taxes;
(iii) all indebtedness for borrowed money owed by Seller or arise by virtue of a Selling Subsidiary;
(iv) all liabilities under Seller's ’s Pension Plans except as otherwise specifically provided in the Employee Matters Agreement or Buyer's ownership as may transfer automatically to Purchaser or a Purchasing Subsidiary under Applicable Law;
(v) all Pre-Closing Environmental Liabilities;
(vi) the liabilities set forth on Section 2.04(b) of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":Seller Disclosure Letter; and
(avii) all liabilities and obligations of Seller or Buyer arising on or after (other than liabilities and obligations relating to Environmental Laws, which are addressed in clause (v)), including accrued expenses, to the Closing Date under extent relating to the Assigned Agreements, Transferred Assets for the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) period prior to the date hereof and (ii) after the date hereof consistent with the terms of this AgreementInitial Closing Date; provided, except in each case however, that any deferred revenue liability attributable to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to Customer Care Business as of the Initial Closing Date and are any liabilities associated with ownership of the Transferred Subsidiary Interests post-closing shall not otherwise included among constitute Excluded Liabilities. Notwithstanding the items causing an adjustment to foregoing, each Transferred Subsidiary shall remain liable for any of its liabilities in the Base Purchase Price contemplated categories set forth in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
clauses (bi), (iii), (iv), (v) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;(vii) above.
(c) all liabilities and obligations associated with This Section 2.04 shall not affect the Assets timing of the assumption by Purchaser or the Business in respect a Purchasing Subsidiary of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or any Assumed Liabilities relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances)employees, whether such liability, responsibility or obligation the timing of which is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing specifically set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessEmployee Matters Agreement.
Appears in 2 contracts
Sources: Master Asset Purchase Agreement, Master Asset Purchase Agreement (Synnex Corp)
Assumed Liabilities. On Subject to the Closing Dateterms and conditions set forth herein, at the Closing, the Buyer will assume and thereafter pay, discharge or perform when due the following Seller’s Liabilities, to the extent arising out of or pertaining to the Business or the UniSource Designee acquiring Purchased Assets, other than the Assets shall deliver to Seller Excluded Liabilities (the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) all liabilities Liabilities that accrue with respect to the operation of the Business and obligations the ownership, operation and use of the Purchased Assets following the Closing;
(b) all Liabilities of the Seller or Buyer arising on or after the Closing Date under in respect of the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case Contracts but only to the extent that such liabilities Liabilities thereunder are required to be performed following the Closing Date, were incurred in the ordinary course of business and obligationsdo not relate to any failure to perform, but for a breach improper performance, warranty or other breach, default or violation by Seller, would have been paid, performed or otherwise discharged the Seller on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Date;
(c) all liabilities and obligations associated with Liabilities that relate to any Tax of the Assets Business or the Business in respect of Taxes Purchased Assets, whether disputed or not, for which Buyer is liable pursuant to Section 3.4 Post-Closing Tax Periods or 6.10(a) hereoffor the Post-Closing Straddle Period;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or Liabilities arising after the Closing Date for which that relate to the Buyer’s employment or termination of Transferred Employees or compensation or employee benefits provided by the Buyer is responsible pursuant to Transferred Employees, but excluding any Liabilities arising from the Seller’s employment or termination of Transferred Employees and except as provided in Section 6.126.10;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as Liabilities of the Business to the extent included or reflected in the Closing Date, including but not limited to: Net Working Capital set forth in the Closing Working Capital Statement that is final and binding upon the parties pursuant to Section 2.6;
(if) costs all Liabilities of compliance (including capital, operating and other costs) relating the Seller that are required to any violation be performed or alleged violation of Environmental Laws occurring prior to, observed on or after the Closing Date, with respect under the Permits assigned and transferred to the ownership Buyer pursuant to Section 2.1(g) to the extent, in the case of each particular Permit, that the Assets or operation of the Business; (ii) property damage or natural resource damage (whether rights and benefits under such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or Permit have been Released prior to, on or after the Closing Date, at, on, in, adjacent assigned to or migrating from received by the AssetsBuyer; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;and
(g) all liabilities and obligations the Liabilities of the Seller or Buyer arising set forth on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Global Power Equipment Group Inc.)
Assumed Liabilities. On At the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Parent shall assume and agree to satisfy and discharge when due, without recourse to Seller, in accordance with as the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following same shall become due only those liabilities and obligations of the Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business and Shareholder set forth on Schedule 2.3 hereto (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and ). The obligations of Seller or Buyer arising on or after the Closing Date and Shareholder under the Assigned AgreementsAssumed Liabilities assumed hereunder and under the Assignment and Assumption Agreements (as defined in Section 2.4) are hereby independently assumed by Buyer and Parent, subject to the Real Property Leasesrepresentations, warranties, covenants and conditions made herein as to that obligation. Except as expressly set forth in the Transferable Permits first sentence of this Section 2.3 and except for Scheduled Contracts assigned to Buyer in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms Section 4.7 of this Agreement, except the Buyer and Parent shall not assume or otherwise be responsible at any time for any liability, obligation, debt or commitment of the Seller and Shareholder, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise. The Seller acknowledges and agrees that the Buyer has no obligation to employ any current or former employees of the Seller following the Closing and is not assuming any liability, cost or expense with respect thereto. In furtherance and not in each case limitation of the foregoing the Seller understands and agrees that the Buyer may decide in its sole and absolute discretion to employ certain employees of the Seller following the Closing with such benefits (including vacation, pension, insurance and severance benefits) as the Buyer may adopt from time to time in its sole and absolute discretion and no such act of the Buyer shall be construed as an assumption by the Buyer of any of such obligations of the Seller. The Seller shall pay, satisfy and discharge (or make adequate provision therefor to Buyer's satisfaction) as the same shall become due all the liabilities, obligations, debts and commitments of the Seller not specifically assumed by the Buyer hereunder. The Buyer, Shareholder, Seller and Parent intend that the assumption of the Assumed Liabilities by Buyer and Parent shall not expand the rights or remedies of third parties against the Buyer or Parent as compared to the extent rights and remedies which such liabilities and obligations, but for a breach or default by Seller, parties would have had against the Seller had this Agreement not been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessconsummated.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ocean Bio Chem Inc), Asset Purchase Agreement (Kinark Corp)
Assumed Liabilities. (a) On the Closing Date, U.S. Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller an undertaking (the Assignment and “U.S. Assumption Agreement Agreement”), in a form reasonably agreed to by the Parties, pursuant to which Buyer or such UniSource Designee U.S. Buyer, on and as of the Closing Date, shall assume and agree to pay, perform and discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, due all of the Assumed Liabilities. All following obligations and liabilities, in each case to the extent arising out of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or relating to operation of the Business or the ownership of the U.S. Acquired Assets on or after the Closing Date (collectively, the “Assumed U.S. Liabilities”):
(i) All obligations and liabilities to the extent arising out of or relating to (A) the operation of the Business or ownership of the U.S. Acquired Assets on or after the Closing Date (other than Excluded Liabilitieswith respect to Primary Acquired Contracts which have not been assigned to Buyer and are being subcontracted pursuant to the Subcontract Agreement) or (B) arising in connection with any Proceeding to the extent related to the operation of the Business or the ownership of the Acquired Assets (other than with respect to Primary Acquired Contracts which have not been assigned to Buyer and are referred being subcontracted pursuant to collectively as the "Assumed Liabilities":Subcontract Agreement) on or after the Closing Date;
(aii) Subject to the terms and conditions of the Subcontract Agreement and Section 1.10, all executory obligations and liabilities and obligations of Seller or Buyer under the Primary Acquired Contracts arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerDate;
(biii) all liabilities and obligations of Seller for All accounts payable related to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or Acquired Contracts relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, periods that occur on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; ;
(iv) The Deferred Revenue Liability, if any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect (subject to the ownership of any Assets or operation of the Business; Section 4.11);
(v) any bodily injury or loss All obligations and liabilities of life Seller under the Assigned Permits arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(ivi) actions All obligations and proceedings based on conductliabilities, actionswith respect to Business Employees that are assumed by, circumstances or conditions arising or occurring on or after that are otherwise the responsibility of, Buyers pursuant to Section 9.3.
(b) On the Closing Date, actions and proceedings described in Schedule 2.3(iIP Buyer shall deliver to Seller an undertaking (the “IP Assumption Agreement”), actions in a form reasonably agreed to by the Parties, pursuant to which, IP Buyer, on and proceedings as of the Closing Date, shall assume and agree to pay, perform and discharge when due all of the following obligations and liabilities, in each case to the extent arising from out of or directly related relating to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising the ownership of the IP Acquired Assets on or after the Closing Date that are applicable (collectively, the “Assumed IP Liabilities”):
(i) All obligations and liabilities to the Businessextent arising out of or relating to the ownership, use or other exploitation of the IP Acquired Assets by or on behalf of the IP Buyer on or after the Closing Date (other than Seller’s use of any of the IP Acquired Assets pursuant to the Restricted Rights License Agreement); and
(ii) all obligations and liabilities with respect to all Proceedings arising out of or relating to the ownership, use or other exploitation of the IP Acquired Assets by or on behalf of the IP Buyer on or after the Closing Date (other than Seller’s use of any of the IP Acquired Assets pursuant to the Restricted Rights License Agreement).
Appears in 2 contracts
Sources: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement (Ariba Inc)
Assumed Liabilities. On In connection with the Closing Dateconveyance of the Assets to Buyer, Buyer or the UniSource Designee acquiring the Assets shall deliver agrees to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when dueassume, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all as of the Assumed Liabilities. All Closing, the future payment and performance of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership (the "ASSUMED LIABILITIES") of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities"Seller Entities:
(a) all liabilities All trade accounts payable and obligations accrued expenses of Seller or Buyer arising on or after Sellers in respect of the Closing business of the Facilities existing as of the Balance Sheet Date under the Assigned Agreements, the Real Property Leases, (hereinafter defined) but only if and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities that the same are accrued or reserved for on the Balance Sheet Date and obligationsremain unpaid and undischarged on the Closing Date, but for a breach or default by Sellerand all trade accounts payable and accrued expenses of Sellers arising in the regular and ordinary course of the business of the Facilities between the Balance Sheet Date and the Closing Date, would have been paid, performed or otherwise discharged to the extent and that the same remain unpaid and undischarged on or prior to the Closing Date and are not otherwise accrued or reserved for on the balance sheet as of the Closing Date and, with respect to Balance Sheet Date payables and expenses and those accrued subsequent thereto, as are included among in the items causing an adjustment to the Base Purchase Price contemplated Working Capital (defined below) calculation set forth in Section 3.3 or 1.5 hereof, exclusive of prorations applicable to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerSellers as set forth in Section 12.29;
(b) all liabilities obligations accruing after, and obligations of Seller for accounts payable with respect to the extent included among period after, the items causing an adjustment Closing with respect to the Base Purchase Price contemplated in Section 3.3Contracts, including the provider contracts (and numbers) between the Facilities and Medicare, Medicaid, TRICARE or other third party payors;
(c) all liabilities and the capital lease obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a(if any) hereof;set forth on Schedule 1.3(c) hereto; and
(d) all obligations and liabilities and obligations as of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which in respect of accrued but unused paid time off (the "ACCRUED PTO") of employees of the Sellers who are hired by Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but all as set forth in (a) above, and employee sick time obligations as set forth on Schedule 3.18. Buyer shall not limited to: be liable for (i) costs of compliance any claims (including capital, operating other than the stated Assumed Liabilities) arising from Sellers' assignment and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership Buyer's assumption of the Assets or operation of the BusinessAssumed Liabilities; (ii) property damage or natural resource damage (whether such damages were manifested before or after uncured defaults in the Closing Date) arising from Environmental Conditions or Releases performance of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets the Assumed Liabilities for periods prior to, on or after to the Closing DateClosing; (iii) any Remediation (whether or not such Remediation commenced before unpaid amounts in respect of the Assumed Liabilities that are due as of the Closing Date (which are not reflected in Working Capital or commences after the Closing Dateon Schedule 3.18, as described in Section 1.3(d)) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; and/or (iv) rights or remedies claimed by third parties under any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) Assumed Liabilities which broaden or vary the rights and remedies such third parties would have had against any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from Sellers if the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership sale and purchase of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer were not to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessoccur.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Psychiatric Solutions Inc), Asset Purchase Agreement (Psychiatric Solutions Inc)
Assumed Liabilities. On In connection with the Closing Date, Buyer or purchase and sale of the UniSource Designee acquiring the Transferred Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which this Agreement, as of the Closing, the Buyer or such UniSource Designee shall assume and agree to discharge when duepay, without recourse to Sellerdischarge, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of perform or otherwise satisfy the following liabilities and obligations of the Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of relating to the Business (other than Excluded Liabilities) are referred to collectively as the "“Assumed Liabilities":”):
(a) all liabilities and obligations (other than liabilities for Taxes) of Seller the Business reflected or Buyer arising on or after reserved against in the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerBalance Sheet;
(b) all liabilities and obligations (other than liabilities for Taxes) accruing, arising out of Seller for accounts payable or relating to the extent included among conduct or operation of the items causing an adjustment Business incurred subsequent to the Base Purchase Price contemplated date of the Balance Sheet in Section 3.3the ordinary course of business consistent with past practice that would have been required by GAAP to be reflected or reserved against in the Balance Sheet had such liabilities existed as of the date of the Balance Sheet; provided, however, that in no event shall the Assumed Liabilities include indebtedness for borrowed money or guarantees thereof;
(c) all liabilities and obligations associated with accruing, arising out of or relating to the Assets conduct or operation of the Business by the Buyer or the Business in respect ownership or use of Taxes for which the Transferred Assets by the Buyer is liable pursuant to Section 3.4 or 6.10(a) hereoffrom and after the Closing Date;
(d) all liabilities and obligations for Taxes accrued as current liabilities in the calculation of Seller or Buyer with respect Final Working Capital (but only to the Transferred Employees incurred on or after extent of the Closing Date amount so accrued) and for which Taxes allocated to the Buyer is responsible pursuant to Section 6.12Article VI;
(e) all liabilities, responsibilities liabilities and obligations of the Seller under the Contracts and the Business Permits to the extent such liabilities and obligations are not required to be performed prior to the Closing Date; provided, however, that if such liability or Buyer arising obligation relates to an obligation of the Seller to make a cash payment under Environmental Laws or a Contract relating to Environmental Conditions or Regulated Substances (including common law liabilities relating the period prior to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation then the Buyer shall assume such liability or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect obligation only to the ownership extent it is included in the calculation of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4Final Working Capital;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation all rights of return and warranty obligations of the Business Seller or use of EMS Brazil associated with the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Products (other than Seller;’s Product Warranty Share); and
(g) all liabilities and obligations of Seller or assumed by the Buyer arising on and after the Closing Date under those Orders specifically relating pursuant to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessSection 5.6.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ems Technologies Inc), Asset Purchase Agreement (Andrew Corp)
Assumed Liabilities. On As of the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall will assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, perform (i) all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's obligations under the Contracts but only to the extent such contracts are listed on Schedule 2.1(d) and only to the extent that such obligations (A) arise from and after the Closing or Buyer's ownership of (B) are related to promotional activities (such as advertising, trade deals, and the Assets or operation of like) that occur after the Closing, (ii) any open purchase orders delivered to suppliers related to the Business for which the goods or services being purchased by Seller relate exclusively to the Business and are delivered to Buyer after the Closing but only to the extent those contracts are listed on Schedule 2.1(d), (other than Excluded Liabilitiesiii) those open purchase orders received from customers related to the Business that have not been fulfilled and paid for as of Closing but only to the extent those contracts are referred listed on Schedule 2.1(d), (iv) customer and shelf space contracts but only to collectively as the "Assumed Liabilities":
extent those contracts are listed on Schedule 2.1(d); (av) supplier contracts but only to the extent those contracts are listed on Schedule 2.1(d); and (vi) all liabilities and obligations of Seller with respect to (A) any trade deals related to the Business which have been offered to the trade but not reimbursed by Sellers prior to the Closing Date (including, without limitation, off-invoice allowances, billback allowances, in-ad coupons and lump sum allowances) but only to the extent those trade deals are listed or Buyer arising summarized on Schedule 2.1(d), and (B) any and all coupons related to the Business which are redeemed or reimbursed on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case but only to the extent such liabilities those coupons are listed or summarized on Schedule 2.1(d) (the "Assumed Liabilities"). "Assumed Liabilities" does not include and obligationsBuyer shall not assume any liability for any tortious or other wrongful action, but for a breach of contract, or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out nonperformance of any such breach or default or out of duty by Seller at any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases Closing. In determining the portion of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date items with respect to (i)(A), above, that are Assumed Liabilities, the ownership allocation of any Assets or operation pre-Closing and post-Closing cost shall be made on the basis of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership volume of the Assets or affected products sold during the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, promotional event in each case directly related to such period, or, if volume analysis is not practical, then on such other cost allocation method as the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessparties may agree.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Italian Pasta Co), Asset Purchase Agreement (American Italian Pasta Co)
Assumed Liabilities. On (a) Except as otherwise expressly provided herein, the Closing Date, Buyer Purchaser Group will only assume:
(i) all obligations and liabilities of the Vendor Group under the Contracts which are not the result of or caused by any breach or default of the UniSource Designee acquiring Vendor Group thereunder on or before the Assets shall deliver to Seller the Assignment Time of Closing;
(ii) all obligations and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance liabilities with the respective terms and subject respect to the respective conditions thereof, all Subsidiaries arising out of or related to the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's Purchaser Group’s ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as Subsidiaries from and after the "Assumed Liabilities":Time of Closing;
(aiii) all liabilities and obligations of Seller related to the Transferred Personnel, including any potential severance or Buyer arising on or after the Closing Date under the Assigned Agreementstermination payments as well as any holiday pay, the Real Property Leasesvacation accruals, and the Transferable Permits in accordance with the terms thereofpension or benefits accruals, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities payable from and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12(including any double-trigger payments triggered as a result of the Purchaser Group’s termination of any Transferred Personnel);
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; Accrued Performance Bonuses;
(v) all obligations and liabilities of the Vendor Group under the Office Leases which are not the result of or caused by any bodily injury breach or loss default of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset the Vendor and/or Vendor Group thereunder on or after before the Closing Date; Time of Closing;
(vi) any bodily injury, loss all Transaction Expenses specifically set forth under the “Amount Assumed” column header on the flow of life, property damage, or natural resource damage arising from funds approved by the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated Purchaser and Vendor in connection with Closing (the ownership of the Assets or the operation of the Business; and “Assumed Transaction Expenses”);
(vii) any Remediation all Indebtedness of any Environmental Condition or Release the Purchased Business specifically set forth under the “Amount Assumed” column header on the flow of Regulated Substances arising from funds approved by the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated Purchaser and Vendor in connection with Closing (the “Assumed Indebtedness”);
(viii) all obligations and liabilities under the Benefit Plans referenced in Section 2.1(g) that arise following the Time of Closing;
(ix) to the extent not already addressed in the foregoing, the Tangible Liabilities; and
(x) all other liabilities and obligations arising out of or related to the Purchaser Group’s ownership or operation of the Assets; providedAssets from and after the Time of Closing, that nothing including all accrued liabilities in the normal course of business of the Purchased Business from and after the Time of Closing.
(b) Other than as set forth in this Section 2.3 herein, the Purchaser Group shall require Buyer to assume any liabilities, responsibilities only be responsible for liabilities and obligations arising out of or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on based upon the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), Purchaser Group’s ownership of the Assets and operation of the Purchased Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on from and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessTime of Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Synchronoss Technologies Inc), Asset Purchase Agreement (Synchronoss Technologies Inc)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofof this Agreement, all Veracyte shall (or shall cause its applicable Subsidiaries to) assume, discharge and perform the following Liabilities of NanoString and its Subsidiaries (the “Assumed Liabilities. All of ”):
(a) any and all Liabilities to the following liabilities and obligations of Seller or Buyer which relate extent relating to, arising out of or arise by virtue resulting from the Purchased Assets, in each case arising after the Closing (for the sake of Seller's clarity, it being understood that all Liabilities to the extent relating to, arising out of or Buyer's ownership of the Assets resulting from any service or operation of the warranty obligations in any Business Contract related to an order for Business Products prior to Closing shall be a Retained Liability under this Agreement).
(b) any and all Taxes (other than Excluded Liabilities) are referred Business Taxes), including Transfer Taxes allocated to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property LeasesVeracyte pursuant to Section 6.3(a), and the Transferable Permits in accordance Straddle Period Taxes allocated to Veracyte pursuant to Section 6.3(b), imposed with the terms thereofrespect to, includingarising out of, without limitation, the Assigned Agreements entered into by Seller (i) prior or relating to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case Business Products to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior attributable to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Post‑Closing Period;
(c) any and all liabilities and obligations associated with the Assets or the Business Liabilities solely in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
any Transferred Business Employees (d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Dateif any) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to as set forth in the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligationsTransition Services Agreement, and engineering excluding any and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly all Liabilities arising from or related to the Business any and outstanding on or arising all Benefit Plans, including International Plans after the Closing Date; and
(id) actions any and proceedings based on conductall Liabilities solely in respect of Continuing Employees arising after the applicable Continuing Employee Start Date, actionsexcept as set forth in the Transition Services Agreement, circumstances and excluding any and all Liabilities arising from or conditions arising related to any and all Benefit Plans, including International Plans after the applicable Continuing Employee Start Date. For the avoidance of doubt, a Liability of Veracyte related to the Purchased Assets or occurring on or Assumed Liabilities, that arises after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising is otherwise included as an Assumed Liability pursuant to the definition thereof shall not be deemed a Retained Liability hereunder solely as a result of such Liability resulting from the continuation by Veracyte of an act or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding omission following the Closing that was also taken by NanoString on or arising on or after the Closing Date that are applicable prior to the BusinessClosing. For the further avoidance of doubt, the foregoing sentence shall in no way be deemed to limit Veracyte’s ability to recover for a breach by NanoString of any representation or warranty under this Agreement pursuant to the terms of this Agreement.
Appears in 2 contracts
Sources: License and Asset Purchase Agreement (NanoString Technologies Inc), License and Asset Purchase Agreement (Veracyte, Inc.)
Assumed Liabilities. On Simultaneously with the Closing, Purchaser and/or one or more of its Designated Affiliates shall assume and be liable for, and shall pay, perform and discharge, all of the following obligations and Liabilities of Seller and its Subsidiaries (other than the Acquired Companies), whether known or unknown, fixed or contingent, asserted or unasserted, to the extent not satisfied or extinguished as of the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment in each case as and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of extent Related to the Business (other than collectively, and excluding the Excluded Liabilities) are referred to collectively as , the "“Assumed Liabilities":”);
(a) all liabilities and obligations Liabilities to the extent related to the Business or any Purchased Asset to the extent such Liabilities (i) arise out of Seller events or Buyer arising conditions occurring on or after the Closing Date under or arise out of the Assigned Agreements, operation of the Real Property Leases, and Business on or after the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and Closing Date or (ii) after are reflected, or are expressly reserved therefor, in the date hereof consistent with Estimated Closing Date Working Capital Statement, as the terms of this Agreement, except same may be adjusted in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerWorking Capital Statement;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated Liabilities under Business Contracts, including any disputes with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilitiescounterparties thereunder, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or whether relating to Environmental Conditions events or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws conditions occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior tobefore, on or after the Closing Date; provided that no Liability shall be assumed arising under or with respect to any Business Contracts to the extent related to any Excluded Real Property or other Excluded Asset;
(iiic) any Remediation all Liabilities assigned to Purchaser or its Designated Affiliates under Section 10.1;
(whether d) all accounts and trade payables, in each case to the extent such Liabilities are reflected, or not such Remediation commenced before are expressly reserved for, in the Estimated Closing Date Working Capital Statement, as the same may be adjusted in the Closing Date Working Capital Statement;
(e) all Liabilities that Purchaser or commences after the Closing Date) any of Environmental Conditions its Designated Affiliates has assumed or Regulated Substances that are present agreed to pay for or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect be responsible for pursuant to the ownership of any Assets terms hereof or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4Transition Agreements;
(f) any Tax that may be imposed by any federalall Liabilities arising from commitments (in the form of accepted purchase orders, state or local government on otherwise) to sell products, or outstanding quotations, proposals or bids (provided, that, with respect to such commitments, quotations, proposals or bids arising between the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after date hereof and the Closing Date, except for any Income Taxes attributable to the income of Sellersuch commitments, quotations, proposals or bids have been made in accordance with Section 6.2 hereof);
(g) all liabilities Liabilities arising from commitments (in the form of issued purchase orders or otherwise), or outstanding quotations, proposals or bids, to purchase or acquire raw materials, components, supplies or services (provided, that, with respect to such commitments, quotations, proposals or bids arising between the date hereof and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets Date, such commitments, quotations, proposals or the Business issued by or entered into bids have been made in accordance with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory ApprovalSection 6.2 hereof);
(h) customer advancesall Liabilities with respect to any return, customer deposits and construction advancesrebate, unperformed service obligationsrecall, Easement relocation obligations, and engineering and construction required warranty or similar liabilities relating to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; andproducts;
(i) actions all Liabilities (other than Liabilities arising out of the use or alleged use of asbestos or asbestos-containing materials in products of the Business) for death, personal injury, advertising injury, other injury to persons or property damage relating to, resulting from, caused by or arising out of, directly or indirectly, use of or exposure to any of the products (or any part or component) designed, manufactured, serviced or sold, or services performed, by the Business, including any such Liabilities for negligence, strict liability, design or manufacturing defect, conspiracy, failure to warn, or breach of express or implied warranties or merchantability or fitness for any purpose or use;
(j) all Liabilities (other than Liabilities arising out of the use or alleged use of asbestos or asbestos-containing materials in products of the Business) relating to, resulting from, caused by or arising out of, directly or indirectly, the Business or any Assets, to the extent that the same constitute, may constitute or are alleged to constitute a tort, breach of contract or violation of, or non-compliance with, any Law or Permit (excluding Environmental Laws and proceedings based on conduct, actions, circumstances Environmental Permits or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(irelated torts), actions which, in any case, (i) relate to claims for death, personal injury, advertising injury, torts, other injury to persons or property damage and proceedings arising from (ii) arise in the Ordinary Course and are of the type which customarily occur in the Business being conveyed to Purchaser or directly related to any other Assumed Liabilityon the Owned Real Properties, the Leased Real Properties, the Operation Sites and generic or industry-wide actions and proceedings outstanding on the Timberlands;
(k) all Liabilities relating to, resulting from, caused by or arising on out of, directly or after indirectly, the Closing Date Business or any Assets, including those that constitute, may constitute or are applicable alleged to constitute a tort, breach of contract or violation of, or non-compliance with, any Law or Permit (excluding Environmental Laws and Environmental Permits) relating to occupational health and safety, occupational disease or occupational injury, other than those relating to occupational health and safety, occupational disease or occupational injury relating to facilities not included in the Business.Assets;
(1) all Liabilities relating to workers’ compensation and relating to, resulting from, caused by or arising out of, directly or indirectly, the Business or any Purchased Assets, including those that constitute, may constitute or are alleged to constitute a tort, breach of contract or violation of, or non-compliance with, any Law or Permit (excluding Environmental Laws and Environmental Permits), other than those relating to workers’ compensation for injury or illness incurred at facilities not included in the Assets;
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (NewPage Energy Services LLC), Equity and Asset Purchase Agreement (NewPage Holding CORP)
Assumed Liabilities. On (a) In partial consideration of the sale of the Conveyed Assets to Purchaser, Purchaser shall assume from Seller at the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following liabilities and obligations, and excluding the Excluded Liabilities (collectively, the "Assumed Liabilities"):
(i) all obligations and liabilities resulting from the ownership, use, operation or maintenance of Seller or Buyer which relate tothe Conveyed Assets, from and after the Closing, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation conduct of the Business arising from and after the Closing;
(ii) all liabilities and obligations under the Assumed Contracts related to the period from and after the Closing, plus such liabilities and obligations related to the period prior to the Closing to the extent included in the calculation of the Proration Payment Amount;
(iii) the obligations and liabilities being expressly assumed by Purchaser pursuant to this Agreement;
(iv) all claims by, and obligations and liabilities relating to, any Transferred Employee relating to services performed from and after the Closing, including any such claims, obligations or liabilities relating to wages, severance payments, bonuses, medical and workers' compensation claims, vacation pay and any other employee benefit plans or arrangements and payroll practices;
(v) all liabilities and obligations with respect to the Licenses to the extent such Licenses are Conveyed Assets (including without limitation the Upgrade Commitment);
(vi) Seller's defense of the litigation matters set forth on Section 2.2(a)(vi) of the Seller Disclosure Schedule;
(vii) any accounts payable incurred as of the Closing (whether or not reflected on Seller's books and records on such date) by Seller in the conduct of the Business prior to the Closing to the extent included in the calculation of the Proration Payment Amount; and
(viii) all liabilities and obligations with respect to Customer Deposits.
(b) Notwithstanding anything to the contrary contained in this Agreement, the term "Assumed Liabilities" shall not include liabilities and obligations relating to: (i) the Excluded Assets, (ii) with respect to Assumed Contracts, liabilities and obligations under such Assumed Contracts relating to the performance or non-performance of such Assumed Contracts prior to the Closing, (iii) any Seller Benefit Plans, or with respect to the employment, severance or termination of any Employee prior to the Closing Date including severance benefits to any employee who is not hired by the Purchaser; or (iv) any other liability related to the period prior to Closing, other than Excluded those included in the calculation of Proration Payment Amount (the liabilities and obligations expressly excluded from "Assumed Liabilities" by this Section 2.2(b) are referred to collectively as the "Assumed Excluded Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (RCN Corp /De/), Asset Purchase Agreement (Susquehanna Media Co)
Assumed Liabilities. On Upon the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofof this Agreement, all of at the Assumed Liabilities. All of Closing, Buyer will assume, pay and perform only the following liabilities of ▇▇▇▇▇▇▇▇, Tribune and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of their respective Affiliates (the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "“Assumed Liabilities"”) and no others:
(a) all the liabilities and obligations arising with, or relating to, the Business of Seller any of the Stations (including the owning or Buyer arising holding of the Purchased Assets) on or and after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerEffective Time;
(b) all liabilities and obligations of Seller for accounts payable any liability or obligation to the extent included among of the items causing an adjustment to the Base Purchase Price contemplated in amount of credit received by Buyer under Section 3.32.08(a);
(c) all liabilities and obligations associated with relating to the Assets Business or the Business Purchased Assets arising under Environmental Laws or related to Hazardous Substances, whether or not presently existing, except for such liabilities or obligations that are required to be disclosed on Section 3.09 of the Disclosure Schedules in respect order for the representations and warranties contained in Section 3.09 to be true and correct as of Taxes for the date hereof, but which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofare not so disclosed on such schedule as of the date hereof (collectively, “Excluded Environmental Liabilities”);
(d) all liabilities and obligations any Tax liability or obligation for a Post-Closing Tax Period (including any Taxes allocable under Section 9.04(d) to the portion of Seller or Buyer any Straddle Period beginning on the Closing Date) with respect to the Transferred Employees incurred on or after the Closing Date Purchased Assets (except as expressly provided for which Buyer is responsible pursuant to in Section 6.12;9.02); and
(e) all liabilitiesliabilities with respect to Transferred Employees arising after the Effective Time, responsibilities or in the case of Inactive Employees, on and after the Employment Commencement Date, (except in all cases (i) (x) for any and all liabilities or obligations relating to, triggered by, accruing or arising as a result of Seller the transactions contemplated hereby or Buyer arising under Environmental Laws contemplated by the Merger Agreement that are due and payable on or relating prior to Environmental Conditions the Closing Date or Regulated Substances the Employment Commencement Date, whichever is later, or (including common law y) any liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility any retention or obligation stay bonus or similar payment to which a Transferred Employee is known or unknown, contingent or accrued entitled as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating Date that will become due and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after payable following the Closing Date, with respect to Date or the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation Employment Commencement Date (whether or not the employment of such Remediation commenced before Transferred Employee is terminated following either such date) or (ii) to the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior toextent prorated in accordance with Section 2.08(c)), on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) and any violations or alleged violations of Environmental Laws occurring on or after the Closing Date other liabilities with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances atTransferred Employees, on▇▇▇▇▇▇▇▇ Plans and Tribune Plans, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projectsapplicable, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that which are applicable to the Businessexpressly assumed by Buyer under Article VIII.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tribune Media Co), Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Assumed Liabilities. On the Closing DateAt Closing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective terms and conditions thereofcontained herein, Buyer shall assume all of the Assumed Liabilities. All of the following obligations and liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than the Excluded Liabilities) are referred ), whether known or unknown, fixed, contingent or otherwise, to the extent such liabilities arise out of or relate to the Acquired Assets and the DF Manufacturing Business (collectively as the "“Assumed Liabilities"”), which include, without limitation, the following:
(a) all liabilities All payables relating to items furnished and obligations of Seller work or Buyer arising on or services performed after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerDate;
(b) all All future obligations (as from the Closing Date) and liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3under any assigned Permits;
(c) all liabilities and All environmental obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior tobefore, on or after the Closing Date, ;
(d) All obligations to Transferred Employees to the extent provided in Section 7.4 hereof;
(e) All obligations and liabilities for Transferred Employees with respect to the ownership of the Assets workers’ compensation claims arising from injuries or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or personal injuries occurring on and after the Closing Date;
(f) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any All obligations and liabilities for all ad valorem property Taxes assessed on the Acquired Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that which are present or have been Released prior to, on or due and payable for periods after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect but subject to the ownership apportion provisions of Section 3.4 hereof; and
(g) Any liability which is expressly assumed by Buyer under this Agreement. Notwithstanding any Assets or operation of the Business; other provision contained in this Agreement (v) any bodily injury or loss of life arising and in particular Article IX - Survival and Indemnification), Buyer undertakes to Seller and Seller’s Affiliate that, with effect from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; it will properly perform, assume, pay and discharge when due, indemnify and keep indemnified Seller and Seller’s Affiliates against any cost (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)including legal costs), operation of the Business claim, loss or use of the Assets on liability suffered or after the Closing Dateincurred under or in respect of, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessLiabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Amphastar Pharmaceuticals, Inc.), Asset Purchase Agreement (Amphastar Pharmaceuticals, Inc.)
Assumed Liabilities. On the Closing Date, but effective as of the Effective Time, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to timely pay, perform and discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following liabilities and obligations Liabilities of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior all Account Payable and all Accrued Liabilities incurred by Seller that remain unpaid as of the Effective Time; provided, that Buyer shall not assume any Workers' Compensation Liabilities, Accrued Closing Payroll or Accrued Shutdown Payroll; and, provided, further, that Buyer shall assume Accounts Payable and Accrued Liabilities to the date hereof and (ii) after the date hereof consistent with the terms any Related Person of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or Seller only to the extent the same arise are included in the computation of Adjusted Closing Working Capital for purposes of Sections 2.6 and 2.7;
(ii) any Liability to customers or suppliers of the Division incurred by Seller in the Ordinary Course of Business for orders outstanding as of the Effective Time (other than any Liability arising out of or relating to a Breach that occurred prior to the Effective Time);
(iii) any Liability to customers of the Division under warranties in the forms disclosed in Exhibit F given by Seller to customers of the Division in the Ordinary Course of Business prior to the Effective Time, but excluding any Liability for injury to person or property arising out of any such breach or default or out of defect in any event which after the giving of notice or passage of time or both would constitute a default product sold by Seller;
(biv) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or any Liability arising after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
Effective Time under the Seller Contracts (e) all liabilities, responsibilities and obligations other than any Liability arising out of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances a Breach that occurred prior to the Effective Time); and
(including common law liabilities v) any Liability of Seller arising under the WARN Act relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as the failure of Buyer to offer employment to employees of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or Division after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Noble International LTD), Asset Purchase Agreement (Eagle Picher Holdings Inc)
Assumed Liabilities. On At the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall E▇▇▇▇▇▇▇ US will only assume and agree to perform and discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership the Sellers as of the Assets Closing Date (in each case for the period to be performed on or operation of after Closing but excluding liabilities or obligations required to have been performed prior to Closing by the Business Sellers) (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior outstanding vacation entitlement up to the Closing Date (if applicable) provided it is fully accrued and are not otherwise included among in the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerClosing Net Cash Assets calculation;
(bii) all liabilities and obligations of Seller for accounts payable to arising after the extent included among Closing under the items causing an adjustment to Assumed Contracts other than the Base Purchase Price contemplated in Section 3.3Excluded Contract liabilities;
(ciii) all liabilities of Enghouse US or its Affiliates relating to employee benefits, compensation or other arrangements with respect to any Transferred Employees arising and obligations associated with relating to the Assets or period after the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofClosing;
(div) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(eA) all liabilities, responsibilities and obligations of Seller or Buyer Taxes arising under Environmental Laws from or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as Enghouse US's operation of the Closing DateMediasite Business, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Purchased Assets or operation assumption of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising Assumed Liabilities after the Closing Date; and
(iv) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings all other liabilities arising from or directly related relating to any other Assumed Liability, Enghouse US's ownership or operation of the Mediasite Business and generic or industry-wide actions the Purchased Assets from and proceedings outstanding on or arising on or after the Closing Date that Closing. For greater certainty, Enghouse US will not assume any liabilities of Sellers which are applicable to not specifically identified as Assumed Liabilities. For the Businessavoidance of doubt, at the Closing, by means of the acquisition of the Transferred Equity Interests and not by means of a direct assumption of such liabilities by Enghouse UK and Enghouse Netherlands, such Buyer entities shall be responsible for the liabilities of the Transferred Companies except as otherwise agreed herein.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Sonic Foundry Inc), Stock and Asset Purchase Agreement (Sonic Foundry Inc)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to honor, pay and discharge when due, without recourse to Seller, in accordance with due only the respective terms and subject to following Liabilities of Seller (the respective conditions thereof, all of the “Assumed Liabilities. All of the following liabilities ”), and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities"no others:
(a) all liabilities and obligations Liabilities of Seller or Buyer arising on or after the Closing Date under the Assigned AgreementsAssumed Contracts, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case but only to the extent such liabilities and obligationsLiabilities arise from any event, circumstance or condition occurring after the Closing Date;
(b) all Liabilities of Seller under the Registrations to be performed after the Closing Date, but for only to the extent such Liabilities relate to any event, circumstances or conditions occurring after the Closing Date;
(c) all Liabilities relating to the Sun Litigation, other than (i) Liabilities that arise as a breach result of actions taken or default omitted by Seller, would have been paid, performed or otherwise discharged Seller and its Affiliates on or prior to the Closing Date (unless taken or omitted with the consent of Buyer), and are not otherwise included among the items causing an adjustment (ii) all fees, costs and expenses incurred by or on behalf of Seller or any of its Affiliates with respect to the Base Purchase Price contemplated in Section 3.3 Sun Litigation on or prior to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
Closing Date (b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofincluding attorneys’ fees);
(d) all liabilities and obligations other Liabilities (other than Excluded Liabilities) arising out of Seller the conduct of the Business or Buyer with respect arising out of or related to the Transferred Employees Assets, but in each case solely to the extent such Liabilities are incurred on or relate to events, circumstances, conditions, actions or activities occurring after the Closing Date for which Buyer is responsible pursuant Date, including, without limitation, any product liability, product warranty, product return, charge-back, rebate or Medicaid, Medicare or other reimbursements, or similar claim, related to Section 6.12the CV Products sold after the Closing Date;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or [****]*
(f) all Liabilities relating to Environmental Conditions or Regulated Substances (including common law liabilities relating Taxes attributable to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as ownership of the Closing Date, including but not limited to: (i) costs Assets and operation of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or the Business during periods beginning after the Closing Date, with respect to but not including, for the ownership avoidance of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or doubt, Taxes that are payable after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent toDate relating to taxable periods, or migrating from any Assets prior toportions thereof, ending on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after to the Closing Date, atdetermined, on, in, adjacent to or migrating from in the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership case of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset period that includes but does not end on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Businesson a pro rata per diem basis; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;and
(g) all liabilities costs and obligations of Seller or Buyer arising on and expenses incurred after the Closing Date under those Orders specifically in connection with or related to the[****]*, including without limitation, any and all work or agreements related thereto, and the [****]*relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances[****]*, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business[****]*.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Biotech Spinco, Inc.), Asset Purchase Agreement (PDL Biopharma, Inc.)
Assumed Liabilities. On the terms and subject to the conditions set forth in this Agreement, at the Closing Date, Buyer the Purchaser or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee its permitted designee shall assume from the Sellers and agree to thereafter pay, perform or otherwise discharge when due, without recourse to Seller, in accordance with the their respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following liabilities and obligations of Seller or Buyer which relate to(collectively, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "“Assumed Liabilities"”) and no others:
(a) all liabilities of the Sellers as reflected on the face of, or reserved against in, the most recent balance sheet included in the Financial Statements, and obligations all trade payables and other operating liabilities incurred by the Sellers in the ordinary course of Seller or Buyer the Business consistent with past practice since the date of the most recent balance sheet included in the Financial Statements and existing as of the Closing;
(b) all liabilities of Sellers arising on or and attributable to the period from and after the Closing Date under with respect to the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereofAcquired Assets, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to Contracts, following the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Closing;
(c) all liabilities the Cure Costs and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofRejection Costs;
(d) all liabilities and obligations the outstanding USEB Indebtedness, which amount currently is $83,800,000, but is subject to adjustment prior to Closing in accordance with the terms of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12USEB Indebtedness;
(e) all liabilitiesthe NPI Indebtedness, responsibilities but solely to the extent of an amount fixed at $5,800,000 (it being acknowledged and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as agreed that the fixing of the Closing Date, including but amount of the NPI Indebtedness at such amount is solely for purposes of calculating such Assumed Liability and shall not limited to: (i) costs of compliance (including capital, operating and other costs) relating to constitute any violation admission or alleged violation of Environmental Laws occurring prior to, on otherwise bind or after the Closing Date, prejudice Purchaser with respect to the ownership calculation of the Assets or operation amount of the Business; (ii) property damage NPI Indebtedness for any other purpose, including without limitation for the purpose of determining the distribution of or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect Purchaser’s entitlement to the ownership of any Assets or operation of purchase price paid for the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after Business by a Qualified Bidder other than the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated Purchaser in connection accordance with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4Bidding Procedures);
(f) any Tax that may be imposed by any federal, state all or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation a portion of the Business outstanding USEO Indebtedness as Purchaser may designate to Seller at or use of the Assets on or after the prior to Closing Date, except for any Income Taxes attributable to the income of Sellerin an amount not less than $500,000;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating related to the Assets Employee Benefit Plans of the Company listed or the Business issued by or entered into with any Governmental Authority and listed in described on Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval1.1(b)(xv);
(h) customer advancesreasonable, customer deposits and construction advancesdocumented administrative expenses of the Sellers under Section 503(b)(1) of the Bankruptcy Code in the New Bankruptcy Cases, unperformed service obligations, Easement relocation obligations, and engineering and construction required regardless of whether incurred prior to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Dateconsummation of the transactions contemplated by this Agreements (collectively, the "USEB Administrative Expenses"); and reasonable, documented administrative expenses of ▇▇▇▇ and Sellers under Section 503(b)(1) of the Bankruptcy Code in the ▇▇▇▇ Bankruptcy Case (collectively, the "▇▇▇▇ Administrative Expenses"; together with the Sellers' administrative expenses, the "Administrative Expenses"), provided that in no event shall the Administrative Expenses assumed and payable by Purchaser hereunder exceed $4.3 million in the aggregate; and
(i) actions and proceedings based on conduct, actions, circumstances [Reserved]
(j) all liabilities related to the employment or conditions termination of employment of any Transferred Employee arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (U S Energy Systems Inc), Asset Purchase Agreement (Silver Point Capital L.P.)
Assumed Liabilities. On As of the Closing DateClosing, Buyer hereby agrees to assume, satisfy or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge perform when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following due only those liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or relating to operation of the Business as set forth on Schedule 3.1 hereto (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
). Other than the Assumed Liabilities, Buyer shall not assume, nor shall APPM or Buyer or any of their respective affiliates or subsidiaries be deemed to have assumed, guaranteed, agreed to perform or otherwise be bound by, or be responsible or otherwise liable for, any liability or obligation of any nature of Seller (whether or not related to the Business), or claims for such liability or obligation, whether accrued, matured or unmatured, liquidated or unliquidated, fixed or contingent, known or unknown (the "Unassumed Liabilities"). Specifically, and without limiting the generality of the foregoing, other than the Assumed Liabilities, neither APPM nor Buyer nor any of their respective Affiliates or subsidiaries shall have any liability or obligation with respect to or arising out of: (a) all liabilities and obligations acts or omissions of Seller Seller, its partners, agents or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) employees whether prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior subsequent to the Closing Date Date, and are whether or not otherwise included among in the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out ordinary course of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
business; (b) all liabilities and or obligations relating to or secured by any portion of Seller for accounts payable to either the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Purchased Assets or the Business prior to the Closing; (c) employee related liabilities (including accrued wages, vacation, employee-related insurance or deferred compensation claimed by any person in respect connection with his or her employment by, or termination of Taxes for which Buyer is liable pursuant to Section 3.4 employment with, Seller, or 6.10(a) hereof;
payroll taxes payable or liabilities arising under any Employee Benefit Plan maintained by Seller); (d) all liabilities and or obligations of Seller Seller, including those for attorneys' fees, arising out of any litigation or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued other proceeding pending as of the Closing DateDate in connection with the Business or any claim, including but whether or not limited to: (i) costs of compliance (including capital, operating asserted and other costs) relating to any violation whether or alleged violation of Environmental Laws occurring prior to, on not liquidated or after the Closing Datecontingent, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) Business arising from Environmental Conditions acts or Releases the failure to take any action by Seller or any of Regulated Substances atits partners, on, in, under, adjacent to, agents or migrating from any Assets employees prior to, on or after to the Closing Date; (iiie) liabilities for any income or other tax, whether disputed or not, attributable to Seller and/or the Business for any period or transaction through the Closing; (f) except as set forth on Schedule 3.1, trade payables which arise prior to the Closing; (g) claims by any Payor or patient with respect to any matter or billing occurring prior to the Closing and for which payment is received by Seller prior to the Closing; and (h) any Remediation other liability or obligation of Seller. Buyer shall be responsible for all refunds required by Payors in the event such refund relates to the accounts receivable purchased by Buyer (whether or but not such Remediation commenced before to exceed the purchase price, determined on a pro rata basis, that Buyer paid for the particular accounts receivable required to be refunded); provided, however, that Seller shall remain responsible for all other refunds which relate to revenue collected prior to Closing. A list of all refunds and credits due as of the Closing Date or commences after shall be set forth on Schedule 3.1 hereto and such refunds and credits shall be deemed Unassumed Liabilities. All employment tax liabilities of Seller shall remain the Seller's responsibility for collection, remittance and tax filing purposes for the period through the Closing. Seller shall supply confirmation that all past and current employment taxes through the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect remitted to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated appropriate agencies in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessa timely manner.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Physician Partners Inc), Asset Purchase Agreement (American Physician Partners Inc)
Assumed Liabilities. On As of the Closing Date, Buyer Purchaser shall not assume or be liable for any Liabilities of the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer Sellers, or such UniSource Designee any of them, except Purchaser shall assume and agree to discharge when due, without recourse to Seller, in accordance with only the respective terms and subject to following limited Liabilities (the respective conditions thereof, all of the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) all liabilities and obligations any Liability relating to or arising out of actions or omissions taken or not taken by Purchaser at any time after the Closing in connection with the ownership or use of the Purchased Assets;
(b) the Current Liabilities (excluding (i) inter-company payables to any Seller or Buyer Affiliate of any Seller by Adelphia or any of its Affiliates and (ii) Pre-petition Payables) incurred by Sellers in the ordinary course of business relating to the Purchased Assets that remain unpaid at and are current under GAAP as of the Closing Date, excluding Sellers’ obligation to Cure under any Assumed Agreements;
(c) any Liability to Sellers’ customers incurred by Sellers in the ordinary course of business for nondelinquent orders outstanding as of the Closing Date;
(d) any Liability arising on or after the Closing Date under the Assigned Agreements, Assumed Agreements (excluding the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and Cure obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12thereof);
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect Liability to the ownership Offered Employees and the M&A Qualified Beneficiaries in accordance with Section 9.3 of this Agreement; and
(f) in accordance with Section 2.8 of this Agreement, 50% of any taxes attributable to the Assets or operation of transactions contemplated by the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from Transaction Agreements and any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or taxes accruing after the Closing Date with respect to the Purchaser’s ownership of any the Purchased Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or Business after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date. The Assumed Liabilities shall include those Liabilities, of Regulated Substances generated in connection with the ownership of types and accruing during the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storagespecified periods, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded specified above in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business2.3.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Devcon International Corp)
Assumed Liabilities. On Subject to the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject conditions set forth herein, effective at the Closing, Purchaser hereby assumes and agrees to the respective conditions thereofpay, all of the Assumed Liabilities. All of the following liabilities perform and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
discharge: (a) all liabilities and obligations Liabilities of Seller or Buyer arising under the Specified Contracts (including all royalty and milestone payments accrued on or after the Closing Date under the Assigned Agreements(x) [*], the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case but only to the extent such liabilities and obligations, but for a breach Liabilities (i) relate to the ownership of or default by Seller, would have been paid, performed conduct relating to the Purchased Assets or otherwise discharged the Products on or prior to following the Closing Date and or (ii) arise or are not otherwise included among incurred on or following the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
Closing Date; (b) all liabilities and obligations of Seller for accounts payable Liabilities relating to the Purchased Assets or the Products, but only to the extent included among the items causing an adjustment such Liabilities (i) relate to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with ownership of or conduct relating to the Purchased Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 Products on or 6.10(afollowing the Closing Date or (ii) hereof;
(d) all liabilities and obligations of Seller arise or Buyer with respect to the Transferred Employees are incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of following the Closing Date, including but not limited to: (iA) costs of compliance (including capitalall post-marketing approval studies, operating commitments and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership regulatory requirements of the Assets FDA or operation of the Business; any other Governmental Entity, (iiB) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 the Pharmacovigilance Agreement, all pharmacovigilance activities for the Products and (C) all conduct of Purchaser or 6.10(a)), operation of the Business or use of the Assets on or its Affiliates after the Closing Date(regardless of whether relating to the continuation of any arrangements initiated by or on behalf of Seller prior to the Closing); (c) Purchaser’s portion of Transfer Taxes under Section 6.1; (d) any Taxes imposed with respect to, except arising out of or relating to the Specified Business or the Purchased Assets for any Income Taxes attributable Post-Closing Tax Period; (e) all Liabilities related to employment or service of the Transferring Employees with Purchaser or any Affiliate of Purchaser to the income extent arising at any time following the Closing, including (i) salary, employee benefits and incentive compensation incurred, and any paid time off accruing, at any time following the Closing, and (ii) any obligations for severance, retention payments and benefits, and similar payments and benefits to the extent arising following the Closing (which, for the avoidance of Seller;
doubt, shall not include the Excluded Payroll Obligations); (f) all retention and similar payments owed to the Transferring Employees, incurred as a result of or following the transactions contemplated hereby (whether alone or in connection with concurrent or subsequent events); (g) all liabilities and obligations any employment, service, compensation or benefit arrangements implemented by, or at the request or direction of, Purchaser or any of Seller Purchaser’s Affiliates at any time whether prior to, as of, or Buyer arising on and after following the Closing Date under those Orders specifically relating (including any offer of employment or engagement with Purchaser or any Affiliate of Purchaser made prior to the Assets Closing pursuant to this Agreement or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
otherwise); (h) customer advancesthe employer portion of any payroll, customer deposits and construction advancessocial security, unperformed service obligationsemployment, Easement relocation obligations, and engineering and construction required unemployment or similar Taxes arising from or incurred or accrued with respect to complete scheduled construction, construction work any amounts described in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Datethis Section 2.3; and
(i) actions [*]; and proceedings (j) with respect to any Action alleging unlawful conduct with respect to the Specified Business, Purchased Assets or Products that occurred exclusively following Closing, the full liability for such Action, or where such unlawful conduct is alleged to have occurred both in the period prior to Closing and the period following Closing, the liability for such Action in proportion to Purchaser and its Affiliates’ relative unlawful conduct (based on conductthe respective time periods of such conduct and associated liabilities) ((a) through (j) collectively, actionsthe “Assumed Liabilities”); provided that, circumstances or conditions arising or occurring the Assumed Liabilities shall not include any liabilities set forth on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business2.4.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Travere Therapeutics, Inc.), Asset Purchase Agreement (Mirum Pharmaceuticals, Inc.)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofof this Agreement, all of Buyer agrees to assume on the Assumed Liabilities. All of Closing Date only the following agreements and liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "“Assumed Liabilities":”):
(a) all the liabilities and obligations of Seller the Business (including any Acquired Subsidiary) set forth on the Estimated Closing Date Balance Sheet or Buyer arising on or after the Closing Date under Balance Sheet, including trade payables, accrued expenses (excluding personal leave and bonuses but including accrued vacation) and other current liabilities and deferred revenue and liabilities of the Assigned Agreements, Business (including any Acquired Subsidiary) incurred in the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to Ordinary Course of Business since the date hereof and (ii) after of the date hereof consistent with the terms of this AgreementLatest Balance Sheet, except in each case but only to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to are included in the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerFinal Net Book Value;
(b) all liabilities and obligations of Seller for accounts payable under the executory portion (that is, the portion which is to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences be performed after the Closing Date) of Environmental Conditions any Acquired Contract, but not including any obligation relating to portions performed or Regulated Substances that are present or have been Released prior to, to be performed on or before the Closing Date or as a result of any breach or default thereunder before Closing;
(c) obligations under the executory portion (that is, the portion which is to be performed after the Closing Date) of any contract, agreement or other arrangement of the Acquired Subsidiaries entered into in the Ordinary Course of Business, but not including any obligation relating to portions performed or to be performed on or before the Closing Date or as a result of any breach or default thereunder before Closing;
(d) the obligations and liabilities arising out of any Foreign Benefit Plan on and after the Closing Date, at, on, in, adjacent but not including any obligation relating to portions performed or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring to be performed on or after before the Closing Date with respect to the ownership or as a result of any Assets breach or operation default thereunder before Closing; and
(e) the obligations and liabilities arising out of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Acquired Assets or and the operation of the Business; and Business (viiincluding the Acquired Subsidiaries) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Qumu Corp), Asset Purchase Agreement
Assumed Liabilities. On (a) Buyer agrees to assume all of the obligations of the Seller under the Intellectual Property Licenses transferred by Seller to Buyer hereunder; provided, however, that Buyer assumes no liability under any Intellectual Property License arising out of or relating to acts or omission of Seller, the conduct of the business or operations of Seller, or the failure to obtain any consent necessary to transfer any Intellectual Property License (collectively, the “Assumed License Liabilities”). Buyer agrees to assume all obligations relating exclusively to Buyer’s use of any of the Intellectual Property Authorizations pursuant to the exercise of Buyer’s rights to use such Intellectual Property Authorizations as set forth in Section 1.1. above (collectively, the “Assumed Intellectual Property Authorization Liabilities” and collectively with the Assumed License Liabilities, the “Assumed Liabilities.” For the avoidance of doubt: (i) except with respect to the Assumed Intellectual Property Authorization Liabilities, Buyer shall assume no obligation, responsibility or liability relating to the Intellectual Property Authorizations, and Seller shall retain the right, in its sole discretion, to continue or discontinue all Intellectual Property Authorizations, and shall remain responsible for all obligations, responsibilities or liabilities relating to the Intellectual Property Authorizations whether arising before or after the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreementparties acknowledge that Buyer does not assume any obligation, except in each case responsibility or liability relating to the extent such liabilities and obligationsRegulatory Data, but for a breach including without limitation, any responsibility to update or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of maintain any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;Regulatory Data.
(b) all liabilities Upon the sale and obligations purchase of Seller the Mammography Intellectual Property, except for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities Assumed Liabilities, Buyer shall not assume and obligations associated with the Assets shall not be liable for any debt, obligation, responsibility or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations liability of Seller or Buyer with respect to any affiliate of Seller, or any claim against any of the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances)foregoing, whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Dateabsolute, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation asserted or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent tounasserted, or migrating from any Assets prior tootherwise (all such liabilities of Seller, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement “Retained Liabilities”). Seller shall remain responsible for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessRetained Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Fischer Imaging Corp), Asset Purchase Agreement (Hologic Inc)
Assumed Liabilities. On Buyers hereby agree to assume at the Closing Dateand to pay, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment perform and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms due and subject to the respective conditions thereof, all of the Assumed Liabilities. All of indemnify and hold Sellers harmless against the following liabilities and obligations of Seller or Buyer which relate toSellers incurred exclusively in connection with the Sold Business, or arise by virtue of Seller's or Buyer's ownership of as the Assets or operation of same shall exist at the Business Closing (other than Excluded Liabilities) such liabilities and obligations are hereinafter referred to collectively as the "“Assumed Liabilities":”):
(a) all liabilities All accounts payable and obligations accrued expenses relating to the Sold Business incurred in the ordinary course of Seller or Buyer arising on or after business consistent with past practice as of the Closing Date under to the Assigned Agreements, extent reflected or reserved against in the Real Property Leases, and the Transferable Permits in accordance with the terms thereofAudited Balance Sheet, including, without limitation, those listed on Schedule 2.1(a) hereto; provided, however, that such accounts payable and accrued expenses shall not include any liabilities associated with any of the Assigned Agreements entered into Disputed Payables or any Retained Benefit Plan;
(b) Sellers’ liabilities, obligations and duties under all Assumed Contracts, Sold Business Real Property Leases (so long as Sellers have delivered to Buyers consents to assignment from the respective lessors with respect thereto) and Tangible Personal Property Leases; provided, however, Buyers shall not assume any liabilities, obligations or duties under such Assumed Contracts, Sold Business Real Property Leases or Tangible Personal Property Leases for any material breach thereof by Seller Sellers for any period prior to the Closing unless such breach is listed on Schedule 2.1(b);
(i) prior All liabilities and obligations that arise after the Closing with respect to or relating to the date hereof Purchased Assets, except for any liabilities or obligations otherwise retained by Sellers under Sections 2.2 or this Section 2.1, and (ii) after Assumed Litigation subject to Section 9.2;
(d) Any liability under the date hereof consistent Worker Adjustment and Retraining Notification Act (“WARN”) or any similar Law to which Transferred Employees are entitled, either now or hereafter, in connection with the terms of this Agreement, except in each case to the extent such transactions contemplated hereby;
(e) All liabilities and obligations, but obligations specifically assumed by Buyers pursuant to Section 8.2.2; and
(f) Product liability claims arising out of claims of third parties for a breach damage or default injury suffered as the result of defective products sold by Seller, would have been paid, performed or otherwise discharged on or Sellers prior to the Closing Date and are not otherwise included among for which Buyers receive reimbursement or indemnification by a supplier of the items causing an adjustment to Sold Business (the Base Purchase Price contemplated in Section 3.3 or “Assumed Product Liabilities”). Notwithstanding the foregoing, to the extent that prior to the same arise out Closing, any of any such breach the Assumed Liabilities are the liabilities or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
Agilysys Canada, such Assumed Liabilities shall be assumed by Canadian Buyer (c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances“Canadian Liabilities”), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Agilysys Inc), Asset Purchase Agreement (Arrow Electronics Inc)
Assumed Liabilities. On Although not a “successor” to the Closing DateSellers, Buyer upon the terms and conditions contained in this Agreement, and absent a showing of actual fraud by Seller regarding the nature of such obligations as bona fide obligations of Seller, Purchaser shall, without any further responsibility or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment liability of, or recourse to, Seller, or Seller’s directors, members, shareholders, officers, employees, agents, consultants, representatives, Affiliates, successors or assigns, absolutely and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall irrevocably assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms be solely liable and subject to the respective conditions thereof, all of the Assumed Liabilities. All of responsible for paying and satisfying the following specifically identified liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of after the Assets or operation of Closing Date (the Business (other than Excluded Liabilities) are referred to collectively as the "“Assumed Liabilities":”):
(a) all liabilities incurred and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior toClosing, on or after the Closing Date, in connection with respect to or from the ownership use of the Purchased Assets or operation of the Business; (ii) property damage Business at the Facilities by Purchaser, its Affiliates, sub-licensees or natural resource damage (whether such damages were manifested before their respective successors or after assigns, including claims by employees of any of the Closing Date) foregoing, or other persons, arising from Environmental Conditions or Releases relating to the use of Regulated Substances at, on, in, under, adjacent to, the Purchased Assets or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before operation of the Closing Date or commences after Business at the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or Facilities after the Closing Date, at, on, in, adjacent including claims resulting from injuries to any persons or migrating Hired Employees that occur after the Closing Date based upon the above and as a result of the condition of any of the Purchased Assets;
(b) obligations incurred and arising from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or actions taken by Purchaser after the Closing Date with respect to the ownership of any Assets Hired Employees or operation of the BusinessBusiness conducted at the Facilities;
(c) all specifically identified obligations of Seller to deliver products or services pursuant to Open Customer Orders outstanding as of Closing, but only to the extent identified in Section 2.3(c) of the Disclosure Schedule;
(d) all specifically identified accounts payable of Seller outstanding as of Closing, but only to the extent specifically identified in Section 2.3(d) of the Disclosure Schedule and related to any Purchased Assets; or any assets that will be delivered after Closing pursuant to Open Supplier Orders;
(ve) any bodily injury all liabilities in respect of the Acquired Contracts, the Acquired Real Property Leases or loss of life arising from Environmental Conditions or Releases of Regulated Substances atthe Acquired Personal Property Leases, on, in, under, adjacent but only to or migrating from any Asset on or the extent that such liabilities thereunder are required to be performed after the Closing Date; (vi) Date and do not relate to any bodily injuryfailure to perform, loss of lifeimproper performance, property damagewarranty or other breach, default or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling violation by Seller or Release, at any Off-Site Location, or arising from the arrangement for such activities, Affiliate on or after prior to the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4Closing;
(f) any Tax that may be imposed by any federal, and all obligations of Purchaser under the WARN Act or similar state or local government on the ownership, sale (except statutes as otherwise provided in Section 3.4 or 6.10(a)), operation a result of the Business or use hiring of Hired Employees and the consummation of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;transaction contemplated by this Agreement; and
(g) all liabilities other obligations expressly and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed identified in Schedule Section 2.3(g) of the Disclosure Schedule assumed by Purchaser under the terms of this Agreement or imposed on Buyer any of the documents and agreements executed in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to connection with the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessClosing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Shiloh Industries Inc), Asset Purchase Agreement
Assumed Liabilities. On (a) Purchaser agrees that, on the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and thereafter (subject to the respective conditions thereofcontesting such assumed Liabilities in good faith) pay, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller perform or Buyer which relate todischarge, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
case may be, only (ai) all liabilities Liabilities related to Purchaser Chargebacks and obligations Purchaser Returns; (ii) those Liabilities accruing as of Seller or Buyer arising on or after the Closing Date under and in respect of the Assigned Agreementsall orders (“Customer Orders”) for shipment of goods bearing the Business Intellectual Property as set forth in Section 2.3(a)(ii) of the Sellers’ Disclosure Schedule, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (iwhich shall be updated two (2) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or Business Days prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated close of business as of the date which is four (4) Business Days prior to Closing solely to reflect, and such updates shall be limited to, ordinary course transactions consistent with the past practices of the Business, which occur between the date hereof and the Closing Date) (the “Order Book”); (iii) all Liabilities related to the Purchaser Cash Collateralized Letters of Credit; (iv) all Liabilities of the Sellers under the Purchased Contracts, Governmental Authorizations and other agreements and interests that are included in Section 3.3 or the Purchased Assets, in all cases only to the extent the same arise out of any such breach or default or out of any event which arising and to be performed after the giving of notice or passage of time or both would constitute a default by Seller;Closing, and (v) the Liabilities to be prorated pursuant to Section 2.6 (collectively, the “Assumed Liabilities”).
(b) all liabilities and obligations Notwithstanding the provisions of Seller for accounts payable Section 2.3(a), in the event that the Sellers incur any Liabilities in the ordinary course of business in connection with the Business prior to the extent included among the items causing an adjustment to the Base Purchase Price contemplated Closing Date in accordance with Section 3.3;5.1, Purchaser shall assume such Liabilities.
(c) In the event of any claim against Purchaser with respect to any of the Assumed Liabilities, Purchaser shall have, and each of the Sellers hereby assigns to Purchaser, all liabilities defenses, counterclaims and obligations associated with rights of setoff that would have been available to any of the Assets Sellers or the Business if such claim had been asserted against any of the Sellers or the Business. The assumption by Purchaser of the Assumed Liabilities and the transfer of the Assumed Liabilities by any of the Sellers shall in respect no way expand the rights or remedies of Taxes for which Buyer is liable pursuant to Section 3.4 any Person against Purchaser, the Sellers, their respective Affiliates or 6.10(a) hereof;
(d) all liabilities and obligations any of Seller or Buyer with respect their respective Representatives as compared to the Transferred Employees incurred on or after rights and remedies that such Person would have had against the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilitiesPurchaser, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as any of the Closing DateSellers, including but their respective Affiliates or any of their respective Representatives had Purchaser not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after assumed the Closing Date, with respect to Assumed Liabilities. Without limiting the ownership generality of the Assets or operation foregoing, the assumption by Purchaser of the Business; (ii) property damage Assumed Liabilities shall not create any direct or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Offindirect third-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessparty beneficiary rights.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Rafaella Apparel Group,inc.), Asset Purchase Agreement (Perry Ellis International Inc)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller an undertaking in form reasonably satisfactory to Seller (the Assignment "ASSUMPTION AGREEMENT") whereby Buyer, on and Assumption Agreement pursuant as of the Closing Date, assumes and agrees to which Buyer or such UniSource Designee shall assume pay, perform and agree to discharge when duedischarge, without recourse to Seller, in accordance with upon the respective terms and subject to the respective conditions thereofof this Agreement, and further subject to the qualifications and limitations herein provided, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership the Asset Sellers as of the Assets or operation of the Business (Closing, other than Excluded Liabilities) , to the extent they are referred attributable to collectively the Analytical Instruments Business as conveyed to Buyer on the "Assumed Liabilities"Closing Date pursuant to this Agreement, including but not limited to, the following:
(a) all liabilities debts, obligations and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereofliabilities, including, without limitation, the Assigned Agreements entered into by Seller (i) prior liabilities arising under or relating to the date hereof and (ii) after the date hereof consistent with the terms of this AgreementEnvironmental Laws, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior attributable to the ownership or operation of the Analytical Instruments Business after the Closing Date and are not otherwise included among or the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out sale of any such breach or default or out products after the Closing (other than as a result of any event which after the giving breach by any Asset Seller of notice or passage any of time or both would constitute a default by Sellerits obligations to Buyer pursuant to this Agreement);
(b) all liabilities and obligations of Seller for accounts payable the Asset Sellers under the contracts, commitments and agreements transferred pursuant to Section 1.2(g) (other than obligations resulting from a breach by the extent included among the items causing an adjustment Asset Sellers of any of their obligations to the Base Purchase Price contemplated in Section 3.3Buyer pursuant to this Agreement);
(c) all liabilities and obligations associated with for post-Closing returns of Analytical Instruments Business products sold prior to or after the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofClosing;
(d) all liabilities and obligations of Seller under the licenses, permits or Buyer with respect to franchises included in the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible Assets pursuant to Section 6.121.2(h);
(e) all liabilities, responsibilities liabilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating Laws for which Buyer expressly assumes responsibility pursuant to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.49.5;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided all liabilities and obligations in respect of employee relations and benefits for which Buyer expressly assumes responsibility pursuant to Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller6 hereof;
(g) all liabilities and obligations of Seller or for any Taxes and expenses for which Buyer arising on and after the Closing Date under those Orders specifically relating expressly assumes responsibility pursuant to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory ApprovalSection 9.3 hereof;
(h) customer advancesall liabilities with respect to actions, customer deposits and construction advancessuits, unperformed service obligationsproceedings, Easement relocation obligationsdisputes, and engineering and construction required claims or investigations for which Buyer expressly assumes responsibility pursuant to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related Section 9.6;
(i) all liabilities of any Asset Seller for product liability claims with respect to the Business and outstanding on or arising relating to occurrences after the Closing Datewith respect to the operation of the Analytical Instruments Business; and
(ij) actions and proceedings based on conduct, actions, circumstances any other liability or conditions arising obligation of the Assets Sellers not referred to in the foregoing provisions of this Section 1.6 that is required to be included or occurring on or after reflected in the Closing Date, actions Balance Sheet referred to in Section 2.6 or the notes thereto. The liabilities and proceedings described obligations assumed by Buyer in Schedule 2.3(i), actions and proceedings arising from or directly related accordance with this Section 1.6 are sometimes hereinafter referred to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after as the Closing Date that are applicable to the Business"ASSUMED LIABILITIES".
Appears in 2 contracts
Sources: Purchase Agreement (Eg&g Inc), Purchase Agreement (Eg&g Inc)
Assumed Liabilities. On At the Closing DateClosing, Buyer or and effective as of the UniSource Designee acquiring the Assets Effective Time, Purchaser shall deliver to Seller the Assignment assume, and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume pay, perform and agree to discharge when due, without recourse to Selleronly the following obligations and liabilities of Sellers (collectively, in accordance with the respective terms and “Assumed Liabilities”):
(i) subject to Section 6.15, 6.20 and 6.21, the respective conditions thereofduties, all obligations and liabilities of Sellers under the Assumed Liabilities. All Assigned Contracts, whether arising prior to or after the Effective Time;
(ii) the duties and obligations of Sellers under the following Assigned Permits arising from and after the Effective Time, but excluding any liabilities or obligations for any breach or default that occurred prior to the Effective Time;
(iii) those liabilities and obligations for Taxes that are allocated to Purchaser pursuant to each of Seller or Buyer which relate toSections 3.3, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":3.4 and 6.10;
(aiv) the outstanding balance of Sellers’ trade debt and other accrued liabilities (including accrued salaries, wages, bonuses and vacation) solely to the extent and in the amounts accrued or reserved against on the Final Closing Balance Sheet and included in the Final Closing Calculation or otherwise incurred in the Ordinary Course from and after the Effective Time until Closing (but subject to Section 6.11(b));
(v) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
resulting from (bA) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation actual or alleged violation acts or omissions of Environmental Laws occurring prior toPurchaser, on any of its Affiliates or after the Closing Dateany of their respective officers, with respect to the ownership of the Assets employees or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated agents in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use ownership of the Purchased Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on from and after the Closing Date under those Orders specifically relating to Effective Time, or (B) any casualty damage, event or condition in respect of Purchaser, the Purchased Assets or the Business issued by first existing or entered into with any Governmental Authority occurring from and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing DateEffective Time; and
(ivi) actions except with respect to Environmental Claims and proceedings based on conductclaims which are the subject of Schedule 6.21, actionsPurchaser’s pro rata portion of those liabilities and obligations arising out of or resulting from any casualty, circumstances damage, event or conditions arising condition in respect of the Purchased Assets or the Business first existing or occurring on or prior to the Effective Time and that continue through and after the Closing DateEffective Time, actions which pro rata portion shall be calculated based upon the number of days from and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to Effective Time on which such casualty, damage, event or condition existed and continued, divided by the Businesstotal number of days on which such casualty, damage, event or condition existed and continued.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Rollins Inc)
Assumed Liabilities. On As of the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree agrees to pay, honor and discharge when duethe liabilities of Seller specifically identified below (the “Assumed Liabilities”). Except as listed hereinafter, without recourse Purchaser will not assume any of the Unassumed Liabilities and Obligations of Seller. Novoste agrees to pay, honor and discharge the liabilities of Seller which are not Assumed Liabilities.
(a) All debts, liabilities and obligations (other than debts, liabilities and obligations on account of breaches and violations by Seller that occurred prior to the Closing) of Seller incurred or arising after the Closing under any and all contracts and agreements, including unwritten agreements, to provide goods or services or to purchase goods or services related to Seller’s customers in connection with Seller’s VBT Business or the Acquired Assets or to purchase supplies or services in connection with Seller’s VBT Business, or such other contracts and agreements related to Seller’s VBT Business, that are to be assigned and the liabilities for which Purchaser shall assume at Closing (“Assumed Contracts”), in each case as identified on Schedule 2.3(a) or otherwise entered into by Novoste or a Subsidiary after the date first set forth above in connection with Seller’s VBT Business in the ordinary course of business in accordance with this Agreement; it being understood that the respective terms provisions of this Section 2.3(a) shall not govern the assumption by Purchaser of the Assumed Liabilities relating to the AEA Supply Agreement and that such matters shall instead be governed by the provisions of Section 2.3(g);
(b) Utility payments for the International Boulevard Premises incurred and arising after the Closing as identified on Schedule 2.3(b);
(c) If there has been no Claim Settlement as of the Closing, all debts, liabilities and obligations related to or arising directly or indirectly from the Patent Infringement Lawsuit Liability, including, but not limited to, attorney’s fees, expert witness fees, costs, damages (including willful infringement or enhanced damages), and settlement amounts or judgments, incurred, awarded or arising after the Closing; it being confirmed and agreed for the avoidance of doubt that Purchaser’s assumption of such debts, liabilities and obligations of Novoste pursuant to this Section 2.3(c) is without regard to when the claims with respect to the Patent Infringement Lawsuit Liability first arose or were made prior to the date first set forth above or may be asserted after the date first set forth above; and it being further confirmed and agreed for the avoidance of doubt that Novoste will pay all legal fees, expenses and costs incurred by it in connection with the Patent Infringement Lawsuit Liability prior to the Closing as set forth in Section 3.20;
(d) All trade accounts payable related to Seller’s VBT Business as of the Closing subject to the respective conditions thereofTrue-Up set forth in Section 2.5 (for purposes of this Section 2.3(d), all of trade accounts payable to be assumed by Purchaser specifically excludes payroll and any associated employment-related accounts payable and rent for the Assumed Liabilities. International Boulevard Premises);
(e) All of the following debts, liabilities and obligations of Seller related to or Buyer which relate arising or incurred directly or indirectly under the Royalty Agreements after the Closing, including, but not limited to, or arise by virtue those related to royalty and other payment obligations to the other parties thereto; it being confirmed and agreed for the avoidance of Seller's or Buyer's ownership doubt that Purchaser’s assumption of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all debts, liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (ipursuant to this Section 2.3(e) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case shall be made to the extent such liabilities permitted by each of the Royalty Agreements or any documents entered into in connection therewith, and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent not permitted by the same arise out of Royalty Agreements or any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) documents entered into in connection therewith, Purchaser shall reimburse Seller for all debts, liabilities and obligations of Seller related to or arising or incurred directly or indirectly under the Royalty Agreements after the Closing as contemplated by this Section 2.3(e) within fifteen (15) business days following any request for accounts payable to such reimbursement; and it being further confirmed and agreed for the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) avoidance of doubt that Novoste shall pay all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all debts, liabilities and obligations of Seller related to or Buyer arising or incurred directly or indirectly under the Royalty Agreements on a pro rata basis with respect to periods prior to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilitiesClosing, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances)including, whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating those related to royalty and other costs) relating payment obligations to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4other parties thereto;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller[Intentionally Deleted];
(g) all All debts, liabilities and obligations of Seller Novoste related to or Buyer arising on and or incurred directly or indirectly under the AEA Supply Agreement regardless of whether such debts, liabilities or obligations of Novoste arose or were incurred prior to the date first set forth above or arise or are incurred after the Closing Date under date first set forth above, including, but not limited to, those Orders specifically relating related to minimum purchase requirement payments and penalties and those related to decontamination and decommissioning costs and obligations; it being confirmed and agreed for the avoidance of doubt that Purchaser’s assumption of the debts, liabilities and obligations of Novoste pursuant to this Section 2.3(g) shall be made to the Assets extent permitted by the AEA Supply Agreement or the Business issued by or any documents entered into with in connection therewith, and to the extent not permitted by the AEA Supply Agreement or any Governmental Authority documents entered into in connection therewith, Purchaser shall reimburse Novoste for all debts, liabilities and listed in Schedule obligations of Novoste related to or arising or incurred directly or indirectly under the AEA Supply Agreement as contemplated by this Section 2.3(g) or imposed on Buyer within fifteen (15) business days following any request for such reimbursement; and it being further confirmed and agreed for the avoidance of doubt that Novoste shall make the payments to AEA Technology-QSA, GmbH as set forth in any Required Regulatory ApprovalSection 5.3(b);
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing DateThe Permitted Encumbrances; and
(i) actions Any and proceedings based on conductall other debts, actions, circumstances liabilities and obligations related to or conditions arising from the use or occurring on ownership of the Acquired Assets or Seller’s VBT Business after the Closing Date(which for the avoidance of doubt, actions shall not include any debts, liabilities and proceedings described in Schedule 2.3(i), actions and proceedings obligations related to or arising from or directly related any VBT Products of Seller that are sold prior to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date or services that are applicable provided by Seller prior to the BusinessClosing).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Novoste Corp /Fl/), Asset Purchase Agreement (Novoste Corp /Fl/)
Assumed Liabilities. On the DLC Nuclear Closing DateDate with respect to the Plants, Buyer or the UniSource Designee acquiring the Assets each Specified FE Subsidiary shall deliver to Seller the DLC an Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee each Specified FE Subsidiary (Penn Power, in respect of Beaver Valley, and CEIC, in respect of Perry Unit 1) shall assume and agree to discharge when due, without recourse to SellerDLC, and shall release DLC from all of the following liabilities and obligations of DLC, direct or indirect, known or unknown, absolute or contingent, which relate to, or arise by virtue of DLC's ownership of the DLC Nuclear Assets (other than Excluded Liabilities) with respect to the Plants (Penn Power, in respect of Beaver Valley, and CEIC, in respect of Perry Unit 1), in accordance with the respective terms and subject to the respective conditions thereofthereof (collectively, all of the "Assumed Liabilities. "):
(a) All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer DLC arising on or after the DLC Nuclear Closing Date under the Assigned AgreementsDLC Nuclear Agreements (except, in the event the Exchange Closing and the DLC Nuclear Closing do not occur on the same day, for the Common CAPCO Agreements which shall not be assigned and assumed as otherwise contemplated hereunder but shall be so assigned and assumed at the later of such Exchange Closing or such DLC Nuclear Closing and then pursuant to a separate Assignment and Assumption Agreement), the Real Property Leases, Leases and the Transferable Permits in accordance with the terms thereof, including, without limitation, including the Assigned DLC Nuclear Agreements entered into by Seller DLC (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by SellerDLC, would have been paid, performed or otherwise discharged on or prior to the such DLC Nuclear Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerDLC;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all All liabilities and obligations associated with the DLC Nuclear Assets or the Business in respect of Taxes for which Buyer is Specified FE Subsidiaries are liable pursuant to Section Sections 3.4 or 6.10(a6.9(a) hereof;
(dc) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all All liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued accrued, as of the applicable DLC Nuclear Closing Date, including but not limited toincluding: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the such DLC Nuclear Closing Date, with respect to the ownership of the Assets or operation of the Businessapplicable DLC Nuclear Assets; (ii) property damage or natural resource damage (whether such damages were manifested before or after the applicable DLC Nuclear Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any DLC Nuclear Assets prior to, on on, or after the applicable DLC Nuclear Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the applicable DLC Nuclear Closing Date or commences after the applicable DLC Nuclear Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the such DLC Nuclear Closing Date, at, on, in, adjacent to or migrating from the DLC Nuclear Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the applicable DLC Nuclear Closing Date with respect to the ownership of any Assets or operation of the Businessany DLC Nuclear Assets; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset DLC Nuclear Assets on or after the applicable DLC Nuclear Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the applicable DLC Nuclear Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the BusinessDLC Nuclear Assets; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the applicable DLC Nuclear Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; providedDLC Nuclear Assets (collectively, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4"Assumed Environmental Liabilities");
(fd) any All liabilities and obligations of DLC with respect to the DLC Nuclear Assets under the agreements or consent orders with Governmental Authorities set forth on Schedule 2.3(d) after the applicable DLC Nuclear Closing;
(e) Any Tax that may be imposed by any federalFederal, state or local government on the ownership, sale (except with respect to Transfer Taxes as otherwise provided in Section 3.4 or 6.10(a6.9(a)), operation of the Business or use of the applicable DLC Nuclear Assets on or after the DLC Nuclear Closing Date, except for any Income Taxes attributable to income received by DLC;
(f) All liabilities and obligations of DLC in respect of Decommissioning the income of SellerDLC Nuclear Assets, and the Decommissioning Costs relating thereto whether arising prior to, on or after the applicable DLC Nuclear Closing Date (collectively, "Assumed Decommissioning Liabilities");
(g) all liabilities All liabilities, responsibilities and obligations arising under or relating to Nuclear Laws or relating to any claim in respect of Seller Nuclear Materials based on common law or Buyer Environmental Laws, whether such liability, responsibility or obligation is known or unknown, contingent or accrued and whether arising or occurring prior to, on and or after the DLC Nuclear Closing Date under those Orders specifically relating Date, including any and all asserted or unasserted liabilities or obligations to third parties (including employees) for personal injury or tort, or similar causes of action arising out of the ownership or operation of the DLC Nuclear Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advancesprior to, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the DLC Nuclear Closing Date; and
, including liabilities, responsibilities and obligations arising out of or resulting from the transportation, treatment, storage or disposal of Low Level Waste or other Nuclear Materials, including liabilities, responsibilities and obligations arising out of or resulting from a "nuclear incident" or "precautionary evacuation" (ias such terms are defined in the Atomic Energy Act) actions at the Plants, or any other licensed nuclear reactor site in the United States, or in the course of the transportation of Nuclear Materials to or from the Plants or any other site prior to, on or after the DLC Nuclear Closing Date, including liability for any deferred premiums assessed in connection with such a nuclear incident or precautionary evacuation under any applicable NRC or industry retrospective rating plan or insurance policy, including any mutual insurance pools established in compliance with the requirements imposed under Section 170 of the Atomic Energy Act and proceedings based on conduct10 C.F.R. Part 140 or 10 C.F.R. section 50.54(w), actionsprovided, circumstances however, that in respect of liabilities, responsibilities and obligations under Section 211 of the Energy Reorganization Act and 10 C.F.R. 50.7 in respect of Beaver Valley, Penn Power as transferee hereunder shall only be responsible for liabilities, responsibilities or conditions obligations arising or occurring on or after the DLC Nuclear Closing Date(collectively, actions "Assumed Nuclear Liabilities");
(h) All liabilities, responsibilities and proceedings described obligations in Schedule 2.3(i)respect of Spent Nuclear Fuel, actions whether such liability, responsibility or obligation is known or unknown, contingent or accrued and proceedings whether arising from or directly related to any other Assumed Liabilityoccurring prior to, and generic or industry-wide actions and proceedings outstanding on or arising on or after the DLC Nuclear Closing Date that are applicable except as specified in the first sentence of Section 2.9 (collectively, "Assumed Spent Fuel Liabilities"); and
(i) All of DLC's rights (except as provided under the CAPCO Settlement Agreement) and obligations under all CAPCO Agreements, except to the Businessextent otherwise specifically provided in the applicable DLC Assignment and Assumption Agreement and except, in the event the Exchange Closing and the DLC Nuclear Closing do not occur on the same day, for the Common CAPCO Agreements which shall not be assigned and assumed as otherwise contemplated hereunder but shall be so assigned and assumed at the later of such Exchange Closing or such DLC Nuclear Closing and then pursuant to a separate Assignment and Assumption Agreement.
Appears in 2 contracts
Sources: Nuclear Generation Conveyance Agreement (Duquesne Light Co), Nuclear Generation Conveyance Agreement (Dqe Inc)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller ------------------- Sellers the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when duepay, perform and discharge, without recourse to SellerSellers or their Affiliates, the following Liabilities of Sellers and their Affiliates which relate to the Purchased Assets and which arise on or after the Closing (except as specifically provided below), other than Excluded Liabilities, in accordance with the respective terms and subject to the respective conditions thereofthereof (collectively, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":): -------------------
(a) all liabilities All Liabilities of Sellers and obligations of Seller or Buyer arising on or after the Closing Date their Affiliates under the Assigned Sellers' Agreements, the Real Intellectual Property Leases, identified in Schedule 2.1(o) and the Transferable Permits in accordance with the terms thereofthereof and the contracts, includinglicenses, without limitation, the Assigned Agreements agreements and personal property leases entered into by Seller (i) prior Sellers or their Affiliates with respect to the date hereof and (ii) Purchased Assets on or after the date hereof consistent with the terms of this Agreement, except in each case to the extent that such liabilities and obligationsLiabilities, but for a breach or default by SellerSellers or their Affiliates, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerSellers or their Affiliates;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations All Liabilities associated with the Purchased Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 Sections 3.5 or 6.10(a6.8 hereof;
(c) hereofAll Liabilities with respect to the Transferred Union Employees and the Transferred Non-Union Employees arising on and after the Closing Date (including, without limitation, any Liabilities relating to the hiring, employment or termination of employment by Buyer or its Affiliates of any individual on or after the Closing Date);
(d) all liabilities and obligations of Seller Any Liability or Buyer with respect responsibility under or related to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including the common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility arising as a result of or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: in connection with (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring Laws, whether prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of any of the BusinessPurchased Assets; (ii) loss of life, injury to persons or property or damage or to natural resource damage resources (whether or not such damages were manifested loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) arising from Environmental Conditions caused (or Releases allegedly caused) by the presence or Release of Regulated Hazardous Substances at, on, in, under, adjacent to, to or migrating from any the Purchased Assets prior to, on or after the Closing Date, including, but not limited to, Hazardous Substances contained in building materials at or adjacent to the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or near the Purchased Assets; and (iii) any the investigation and/or Remediation (whether or not such investigation or Remediation commenced before the Closing Date or commences on or after the Closing Date) of Environmental Conditions or Regulated Hazardous Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after from, the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Purchased Assets or in the operation of soil, surface water, sediments, groundwater, landfill cells or in other environmental media at or adjacent to the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Purchased Assets; provided, that nothing set forth in this Section 2.3 2.3(d) shall require Buyer to assume any liabilities, responsibilities or obligations Liabilities that are expressly excluded in Section 2.42.4(g), Section 2.4(h), Section 2.4(i) or Section 2.4(j) hereof;
(e) All Liabilities of Sellers with respect to the Purchased Assets under the agreements or consent orders set forth on Schedule 4.6 arising on or after the Closing; and
(f) With respect to the Purchased Assets, any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a))sale, operation of the Business or use of the Purchased Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued received by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessSellers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (WPS Resources Corp), Asset Purchase Agreement (WPS Resources Corp)
Assumed Liabilities. On Except for the Closing Date, obligations and Liabilities specifically assumed by Buyer or the UniSource Designee acquiring relevant Designated Buyers in this Section 2.03, Buyer and the Designated Buyers shall not be deemed to have assumed or agreed to be responsible for any Seller’s, or any of its Affiliates’, Liabilities, whether or not arising out of the ownership and operation of the Purchased Assets shall deliver to Seller or the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with Purchased Business. Upon the respective terms and subject to the respective conditions thereofof this Agreement, all effective at the time of the Closing, Buyer shall, or shall cause the relevant Designated Buyers to, assume, become obligated for, and agree to pay and perform when due, only the following Liabilities of the Sellers (collectively, the “Assumed Liabilities. All of the following liabilities ”), and obligations of Seller or Buyer which relate tono other Liabilities, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred subject to collectively as the "Assumed Liabilities"Section 7.12:
(a) all liabilities and obligations Liabilities of Seller or Buyer the applicable Sellers arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, Assumed Leases and the Transferable Permits in accordance with Assumed Contracts, not including Cure Costs;
(b) all Liabilities of the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller Sellers arising out of or relating to (i) prior the Transferred Permits/Licenses, including such Liabilities thereunder arising out of or relating to all reclamation and post-mining Liabilities at the Purchased Assets, (i) any mine operating or safety compliance matters related to the date hereof condition of the Purchased Assets or the mining areas of the Purchased Business, (i) the Purchased Assets’ or the Purchased Business’ compliance with Environmental Laws; and (iii) after any conditions arising from a spill, emission, release or disposal into the date hereof consistent with environment of, or human exposure to, Hazardous Materials resulting from the terms operation of this Agreementthe Purchased Assets, except excluding, in each case of the preceding cases (i)‑(iv), any monetary fines and penalties to the extent that such liabilities monetary fines and obligationspenalties arise from or relate to acts or omissions occurring on or before the Closing Date and can be Excluded Liabilities under Applicable Law, but including any monetary fines and penalties for which the Sellers or any of their Affiliates have received a breach written notice of violation or default by Seller, would have been paid, performed notice of claim (or otherwise discharged other notice of similar legal intent or meaning) from any Governmental Authority relating to a violation on or prior to the Closing Date (whether or not disclosed on Schedule 3.08(a) or Schedule 3.17) (such excluded fines and are not otherwise included among penalties, collectively, the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of “Excluded Pre-Closing Fines”) and any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Excluded Off-Site Environmental Liabilities;
(c) except as provided in Section 7.03, all liabilities and obligations associated Liabilities of any kind or character to the extent resulting from or arising out of or in connection with the Assets Buyer’s or the Business relevant Designated Buyer’s use, operation, possession or ownership of or interest in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofthe Purchased Assets and/or Purchased Business, in each case, following the Closing, including during the Interim Period;
(d) all liabilities and obligations of Seller or Buyer (i) with respect to any Transferred Employee (except as otherwise set forth in the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
following clause (e) iii)), any and all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or claims relating to Environmental Conditions employee health and safety, including claims for injury, sickness, disease or Regulated Substances (death, including common law liabilities relating any Workers’ Compensation Liabilities, to Environmental Conditions and Regulated Substances), whether such liability, responsibility the extent arising out of an event or obligation is known or unknown, contingent or accrued as of injurious exposure that occurs after the Closing Date, including but not limited to: (iii) costs with respect to any Transferred Employee represented by the United Mine Workers of compliance America (including capital“UMWA”), operating other than Black Lung Liabilities, any and other costs) all claims relating to any violation employee health and safety, including claims for injury, sickness, disease or alleged violation death, to the extent arising out of Environmental Laws occurring prior toan event or injurious exposure that occurs before, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; and (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date and all Black Lung Liabilities with respect to any Transferred Employee (including any Transferred Employee represented by the ownership UMWA) who is employed by the Buyer or the applicable Designated Buyer for a period of any Assets not less than one year (as defined in 20 CFR § 725.101(a)(32)) if the Buyer or operation of the Business; applicable Designated Buyer is otherwise liable to such Transferred Employee for such Black Lung Liabilities;
(ve) any bodily injury or loss of life all trade accounts payable arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated Petition Date in connection with the ownership of Purchased Business to the Assets or extent such trade payables are included in the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4Final Working Capital Adjustment;
(f) any Tax that may be imposed the Liabilities expressly assumed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable Buyer pursuant to the income of Seller;Section 9.02; and
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating Liabilities specified in Schedule 2.03(g) with respect to the Assets or the Business issued by or entered into with any Governmental Authority and listed Consent Decrees identified in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businesssuch Schedule.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Contura Energy, Inc.), Asset Purchase Agreement (Contura Energy, Inc.)
Assumed Liabilities. On Upon the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofset forth in this Agreement, all on the Closing Date, BofI will assume and agree to pay and perform, as and when due, only those Liabilities of HRB Bank listed below in this Section 2.03 (the “Assumed Liabilities. All ”):
(a) all Deposits;
(b) all HRB Prepaid Card Balances;
(c) the payment and performance of the following liabilities obligations and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business other Liabilities (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under relating to the Assigned Agreements, Transferred Assets or the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller Assumed Contracts (other than (i) obligations or Liabilities arising out of or relating to a breach or non-performance of the terms thereof prior to the date hereof Closing and (ii) obligations or Liabilities payable after Closing but subject to proration as provided in Section 3.06, which obligations or Liabilities will be paid by BofI for HRB Bank’s account after Closing); and
(d) the date hereof consistent with obligations under the terms Commitments (other than obligations arising out of this Agreement, except in each case or relating to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or non-performance thereof prior to the Closing). No later than three (3) Business Days prior to the Closing Date Date, HRB Bank shall complete and are not otherwise included among the items causing provide to BofI (i) an adjustment electronic schedule, in form and substance reasonably acceptable to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any BofI, setting forth such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer information as BofI may reasonably request with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued Deposits as they existed as of the cut-off date for such schedule which shall be not earlier than the fifth (5th) Business Day prior to the Closing Date, including but (ii) an electronic schedule, in form and substance reasonably acceptable to BofI, setting forth such information as BofI may reasonably request with respect to the HRB Prepaid Card Balances as they existed as of the cut-off date for such schedule which shall be not limited to: earlier than the fifth (i5th) costs Business Day prior to the Closing Date, and (iii) an electronic schedule, in form and substance reasonably acceptable to BofI, setting forth such information as BofI may reasonably request with respect to the Commitments as they existed as of compliance the cut-off date for such schedule which shall be not earlier than the fifth (including capital5th) Business Day prior to the Closing Date. The parties acknowledge and agree that the schedules to be delivered as provided in the preceding sentence are preliminary and will not account for changes in the Deposits, operating HRB Prepaid Card Balances and other coststhe Commitments between the cut-off dates of such schedules and the Closing Date. No later than five (5) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or Business Days after the Closing Date, with respect to the ownership HRB Bank shall deliver final electronic versions of the Assets or operation aforementioned schedules containing information regarding the Deposits, HRB Prepaid Card Balances and Commitments as of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after close of business on the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Purchase and Assumption Agreement (H&r Block Inc), Purchase and Assumption Agreement (H&r Block Inc)
Assumed Liabilities. On Subject to the Closing conditions set forth in this Agreement, in addition to the Purchase Price and as additional consideration for the Purchased Assets, as of the Effective Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume only the following Indebtednesses and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject Losses of Seller to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits extent provided in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) of this Section 2.2(a) therein (collectively, the “Assumed Liabilities”). For purposes of clarity, no other Indebtednesses or Losses of Seller shall be expressly, implicitly or by operation of law assumed by Buyer:
(i) Seller’s obligations, after the date hereof consistent with the terms of this AgreementEffective Date, except in each case under any Assumed Contracts, provided that such obligations relate: x) to the extent Seller’s Table Games Business, and y) that such liabilities Assumed Contracts were entered into in the Seller’s Ordinary Course of Business of operating Seller’s Table Games Business, and obligations, but for specifically excluding any liability or obligation relating to or arising out of such Assumed Contracts as a result of (A) any breach or default by Seller, would have been paid, performed or otherwise discharged of such Assumed Contracts occurring on or prior to the Closing Date and are not otherwise included among the items causing an adjustment Effective Date, (B) any violation of law, breach of warranty, tort or infringement occurring on or prior to the Base Purchase Price contemplated in Section 3.3 Effective Date; (C) any environmental, health or safety matter where the facts or conditions underlying such matter occurred or existed on or prior to the extent Effective Date; and (D) any related charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand; provided, however, that notwithstanding the same arise out of foregoing, any obligation not disclosed in writing in an Assumed Contract shall not be an Assumed Liability. All Assumed Contracts are listed on the Assumed Contracts Schedule. Merely because certain rights under an agreement between Seller and a third party are assigned to Buyer does not make such breach agreement an Assumed Contract. In addition, for any Assumed Contract which utilizes any System (such as, without limitation, CJS) and where any payments for that System or default any servicing or out of any event which after the giving of notice maintenance thereof are included in Purchased Table Games Net Revenue, then: x) Buyer shall be entitled to retain all such payments; and y) Seller shall be obligated, at no cost to Buyer or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable additional cost to the extent customer, to provide all servicing and maintenance thereon for as long as such payments are included among in such Purchased Table Games Net Revenues. Notwithstanding the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which foregoing, Buyer is liable not assuming any obligations whatsoever with respect to any System, and Seller hereby indemnifies all Buyer Indemnitees, pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities7.2, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing DateLosses; and
(iii) actions all obligations and proceedings liabilities to the extent based solely on conduct, actions, facts or circumstances or conditions arising or occurring on or that arise after the Closing DateEffective Date and that relate to the ownership, actions use and/or operation of the Purchased Assets and proceedings described in Schedule 2.3(i), actions the operation and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or conduct of Seller’s Tables Games Business after the Closing Date Effective Date. As an example, an allegation made post-closing that any Purchased Asset is infringing a third party’s Intellectual Property is not an Assumed Liability and shall be fully covered by Seller’s indemnification to Buyer if the alleged post-closing acts of infringement are applicable substantially the same as Seller’s pre-closing acts or omission, with relation to the Businesssame Purchased Asset.
Appears in 2 contracts
Sources: Purchase Agreement (Progressive Gaming International Corp), Purchase Agreement (Shuffle Master Inc)
Assumed Liabilities. On Upon the terms and subject to the conditions of this Agreement, at the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to pay, discharge or perform when due, without recourse to Selleras appropriate, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
: (a) all liabilities and obligations executory Liabilities of Seller or Buyer arising on or under the Assigned Contracts, but only to the extent that such Liabilities thereunder are required to be performed after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits do not arise from or in accordance connection with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with a breach of the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default applicable Assigned Contract by Seller, would have been paid, performed or otherwise discharged Seller on or prior to the Closing Date; (b) accrued expenses, accounts payable and deferred revenue obligations as of the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent reflected on the same arise out Balance Sheet or accrued since the Balance Sheet Date in the ordinary course of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities business; and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or warranty claims arising after the Closing Date for which Buyer is responsible pursuant that relate to Section 6.12;
(e) all liabilities, responsibilities and obligations the pre-Closing period up to the amount of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent the reserve therefor reflected on the Balance Sheet or accrued as since the Balance Sheet Date in the ordinary course of business (such assumed Liabilities, the Closing Date“Assumed Liabilities”). For the avoidance of doubt, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage Buyer shall be liable for all Liabilities arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use the ownership of the Purchased Assets on or first arising during any period after the Closing Dateand that are, except for as included in the Assumed Liabilities, not incurred as a result of or in connection with any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations action, omission, obligation or liability of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating its Affiliates occurring or existing prior to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advancesClosing; provided, customer deposits and construction advanceshowever, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related that notwithstanding anything to the Business contrary, the foregoing shall in no way limit the rights of Buyer to enforce obligations of the Seller and outstanding on pursue remedies against the Seller under the Transition Services Agreement in accordance with the terms of the Transition Services Agreement in the event of a breach or arising after default by the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after Seller of the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after terms of the Closing Date that are applicable to the BusinessTransition Services Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Realm Therapeutics PLC), Asset Purchase Agreement (Realm Therapeutics PLC)
Assumed Liabilities. On Upon the terms and subject to conditions set forth herein, Buyer shall assume, as of the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver and agrees to Seller the Assignment pay, perform and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume discharge, as and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities liabilities, responsibilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities"obligations:
(a) all liabilities liabilities, responsibilities and obligations (including Taxes), arising out of, accruing or resulting from the operation of Seller the Business or Buyer arising on the use, ownership or operation of the Acquired Assets after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerDate;
(b) all liabilities liabilities, responsibilities and obligations of Seller for accounts payable Buyer as provided in Article VIII with respect to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Transferred Employees;
(c) all liabilities liabilities, responsibilities and obligations associated that arise after the Closing Date in connection with the Assets or performance of the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofAssigned Contracts, Real Property Interests and the Real Property Leases;
(d) all liabilities liabilities, responsibilities and obligations to third parties that relate to arrangements and commitments between Sellers and a third party for the construction of shared transmission facilities between various switching points included in the Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12Exchanges;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the post-Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projectsprojects for the Seller Exchanges;
(f) all liabilities, in each case directly responsibilities and obligations relating to Customer Prepayments, Customer Deposits and Construction Advances;
(g) all liabilities, responsibilities and obligations, other than Interim Capital Expenditure Obligations, related to the Business and outstanding on or Seller Exchanges arising out of any Law of any Governmental Authority after the Closing DateDate regardless of whether the action taken by the Governmental Authority is or purports to be based on conduct or actions that occurred at any time prior to the Closing Date ("Future Regulatory Obligations"); provided, however, Buyer shall not be liable for any Future Regulatory Obligation arising directly out of any (i) willful misconduct by Sellers as judicially determined by a final order of a court or Governmental Authority of competent jurisdiction; or (ii) conduct by Sellers that was not reasonably prudent based on then-prevailing circumstances, in either case which conduct occurred prior to the Closing Date ("Retained Future Regulatory Obligations"); and provided further, that Sellers' reliance on a reasonable interpretation of existing Law or practice shall be deemed reasonably prudent;
(h) all liabilities, responsibilities and obligations related to the Seller Exchanges arising out of any Law of any Governmental Authority requiring any capital expenditure after the date of this Agreement, regardless of whether the action taken by the Governmental Authority is or purports to be based on conduct, facts or actions that occurred at any time prior to the date of this Agreement ("Interim Capital Expenditure Obligations"); provided, however, Buyer shall not be liable for any Interim Capital Expenditure Obligation arising directly out of any (i) willful misconduct by Sellers as judicially determined by a final order of a court or Governmental Authority of competent jurisdiction, or (ii) conduct by Sellers that was not reasonably prudent based on then-prevailing circumstances, ("Retained Interim Capital Expenditure Obligations"); and, provided further, that Sellers' reliance on a reasonable interpretation of existing Law or practice shall be deemed reasonably prudent. Sellers shall notify Buyer of all material Interim Capital Expenditure Obligations within a reasonable time after publication of said obligations by a Governmental Authority; and
(i) actions all liabilities and proceedings based on conduct, actions, circumstances or conditions obligations for litigation and claims by third parties arising or occurring on or out of an occurrence after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to including any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or claims for infringement of Third Party Intellectual Property for acts occurring after the Closing Date that are applicable Date; (collectively, the "Assumed Liabilities"). Notwithstanding anything in this Section 2.3.1 to the Businesscontrary, Assumed Liabilities shall not include any liabilities, responsibilities or obligations expressly included in Retained Liabilities pursuant to Section 2.3.2.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Centurytel Inc), Asset Purchase Agreement (Verizon South Inc)
Assumed Liabilities. On Subject to the Closing Dateterms and conditions set forth herein, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to pay, perform and discharge when due, without recourse to Seller, in accordance with the respective terms due any and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or Company when due resulting from the operation of the Business Company after the Closing Date (other than Excluded Liabilities) are referred to collectively as the "collectively, “Assumed Liabilities"”). Assumed Liabilities shall include, but are not limited to:
(a) all liabilities and obligations trade accounts payable of Seller or Buyer arising on or after for inventory to third parties incurred in the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms Ordinary Course of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to Business that exist as of the Closing Date and are not otherwise included among remain unpaid as of the items causing an adjustment Closing Date. Seller shall pay all trade accounts payable for inventory within three days prior to Closing, unless set forth on Section 2.03(a) of the Base Purchase Price contemplated in Section 3.3 or Disclosure Schedules, which shall be updated immediately prior to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default Closing, and must be expressly agreed to be assumed by SellerBuyer;
(b) all liabilities and obligations of Seller for accounts payable arising under or relating to the Assigned Contracts but only to the extent included among that such liabilities thereunder arise after and are required to be performed after the items causing an adjustment Closing Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by the Seller on or prior to the Base Purchase Price contemplated in Section 3.3Closing Date;
(c) all liabilities and obligations associated with for (i) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any taxable period commencing after the Closing Date. For the sake of clarity, Seller shall be responsible for all Taxes relating to the Business in respect and the Purchased Assets prior to, and including the Closing Date, and Buyer shall be responsible for Taxes resulting from the operation of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofthe Business after the Closing Date;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred set forth on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e2.03(d) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing DateDisclosure Schedules, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that which are expressly excluded in Section 2.4agreed to be assumed by Buyer;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Concierge Technologies Inc), Asset Purchase Agreement (Concierge Technologies Inc)
Assumed Liabilities. On the Closing DateUpon Closing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to honor, pay and discharge when duedue only the following Liabilities of Seller (the “Assumed Liabilities”), without recourse to Sellerand no others:
(a) all Liabilities of Seller under the Assumed Contracts, in accordance with the respective terms and subject but only to the respective conditions thereofextent such Liabilities arise from any event, circumstance or condition occurring after the Closing Date;
(b) all of the Assumed Liabilities. All of the following liabilities and obligations Liabilities of Seller under the Registrations to be performed after the Closing Date, but only to the extent such Liabilities relate to any event, circumstances or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of conditions occurring after the Assets or operation of the Business Closing Date;
(c) all other Liabilities (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations arising out of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior related to the date hereof and (ii) after the date hereof consistent with the terms of this AgreementAssets, except but in each case solely to the extent such liabilities and obligationsLiabilities are incurred or relate to events, but for a breach circumstances, conditions, actions or default by Selleractivities occurring after the Closing Date, would have been paidincluding any product liability, performed product warranty, product return, charge back, rebate or otherwise discharged on Medicaid, Medicare or prior other reimbursements, or similar claim, related to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which Product sold after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofClosing Date;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or Liabilities relating to Environmental Conditions or Regulated Substances (including common law liabilities relating Taxes attributable to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as ownership of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or Assets during periods beginning after the Closing Date, with respect to but not including, for the ownership avoidance of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances atdoubt, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances Taxes that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or payable after the Closing Date with respect relating to the ownership of any Assets taxable periods, or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances atportions thereof, on, in, under, adjacent to or migrating from any Asset ending on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer prior to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(ie) actions the payment Liabilities and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after royalty and adverse event reporting and record-keeping obligations of Seller under the Closing Date, actions and proceedings described in Schedule 2.3(iRetained Contracts which relate to the rights licensed to Buyer pursuant to Section 2.1(a)(ii), actions namely the [**] Dollar ($[**]) per vial royalty payable pursuant to Section 8.1(b) of the Amended and proceedings arising Restated License and Supply Agreement dated as of February 16, 2004 between Seller and SEP International, AG, as amended, the requirements of Section 3.3 of such Amended and Restated License and Supply Agreement and the [**] percent ([**]%) to [**] percent ([**]%) royalty on net sales payable pursuant to Section 4(ii) of the Letter Agreement dated as of May 15, 2007 between Seller and Clinic Barcelona Hospital Universitari, but only to the extent such payment Liabilities arise from any event, circumstance or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or condition occurring after the Closing Date that are applicable (collectively, the “Assumed Retained Contract Obligations”). Buyer shall be permitted to report and pay such Assumed Retained Contract Obligations directly to the Businessapplicable payee in accordance with each Retained Contract. Notwithstanding the foregoing, the parties acknowledge that they do not believe that any royalties will be owed to Clinic Barcelona Hospital Universitari under the Letter Agreement dated as of May 15, 2007 between Seller and Clinic Barcelona Hospital Universitari.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ikaria, Inc.), Asset Purchase Agreement (Ikaria, Inc.)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with Subject to the terms thereofand conditions of this Agreement, including, without limitation, the Assigned Agreements entered into by Seller (i) prior transfer of the Purchased Assets to the date hereof and (ii) after the date hereof consistent with the terms of this AgreementPurchaser, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date Date, Purchaser shall assume, and are not otherwise included among thereafter honor and fully and timely, pay, perform and discharge when due, the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out following liabilities of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) Seller and shall perform all liabilities duties, responsibilities, and obligations of Seller for accounts payable under the following, to the extent included among that such liabilities, duties, responsibilities and obligations arise or accrue after close of business on the items causing an adjustment to Closing Date (collectively, the Base Purchase Price contemplated in Section 3.3“Assumed Liabilities”):
(i) The Liabilities;
(cii) All of Seller’s duties and responsibilities relating to the Deposit Liabilities, including, without limitation, with respect to (x) the abandoned property laws of any state or (y) any other applicable law;
(iii) Any of Seller’s accrued and unpaid expenses related to the operations of the Business which accrue after the Closing Date, including, without limitation, the cost and expenses of any data processing. Seller shall be responsible for and pay all expenses related to the operations of the Business which accrue through the Closing Date;
(iv) Seller’s obligations under the Assumed Contracts (including the Supplemental Retirement Plans), to the extent that such liabilities, duties, responsibilities and obligations arise or accrue after close of business on the Closing Date;
(v) Any and all other liabilities and obligations associated with relating to, or arising out of, the Purchased Assets or Assumed Liabilities to be performed after the Business in respect Closing or arising out of Taxes for which Buyer is liable pursuant the operation of the Branches and ATMs from and after the Closing Date, but only to Section 3.4 the extent that such liabilities or 6.10(a) hereofobligations arise or accrue after the close of business on the Closing Date;
(dvi) all liabilities and The participation obligations of Seller or Buyer with respect relating to the Transferred Employees Letters of Credit to the extent contemplated by Section 10.6; and
(vii) All direct and indirect liabilities (1) provided in Section 8.4 of this Agreement to be assumed by Purchaser and its Affiliates and (2) created or incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of in connection with the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring Business on or after the Closing Date relating to the Transferred Employees.
(b) Except as otherwise set forth in this Agreement, Purchaser shall not assume or be bound by any duties, responsibilities, obligations or liabilities of any kind or nature, whether known or unknown, whether asserted or unasserted, whether accrued or unaccrued, whether contingent or otherwise, including, without limitation, with respect to (i) Taxes related to the ownership of any Assets direct or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the indirect ownership or operation of the Assets; providedPurchased Assets and the Business, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be Taxes imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation a result of the Business sale or use transfer of the Purchased Assets and the Business pursuant to this Agreement, Taxes imposed on Seller or after Parent and any consolidated, combined, or unitary group of which Seller is a member on account of the Closing Datesale or transfer of the Purchased Assets and the Business pursuant to this Agreement, except for and any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations liability of Seller or Buyer arising on and after Parent for the Closing Date unpaid Taxes of any Person under those Orders specifically relating Treas. Reg. § 1.502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise, (ii) the Excluded Contracts, (iii) the Fiserv Settlement Amount, (iv) the I-Pay Settlement Amount, (v) the ▇▇▇▇▇ Claim or (vi) the litigation disclosed in Schedule 5.5 hereof. Seller shall use reasonable efforts to obtain any necessary third party consents to the Assets or transfer of the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advancesAssumed Liabilities to Purchaser, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related including but not limited to any other Assumed Liability, and generic such consents necessary to transfer any ▇▇▇ or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable custodial accounts to the BusinessPurchaser.
Appears in 2 contracts
Sources: Purchase and Assumption Agreement, Purchase and Assumption Agreement (Bar Harbor Bankshares)
Assumed Liabilities. On As partial consideration for the purchase of the Assets and the Business, at the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree thereafter to perform when due and discharge when dueonly the following debts, without recourse to Seller, in accordance with the respective terms obligations and subject liabilities of Sellers relating to the respective conditions thereofBusiness or the Assets, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate towhether known, unknown, fixed, contingent, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business otherwise (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(a) all liabilities those liabilities, obligations, costs and obligations expenses of Seller Balfour which relate to or Buyer arising arise out of the performance of the Contracts and Permits on or after the Closing Date and those liabilities, obligations, costs and expenses of T&C under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, Kentucky Lease on or after the Closing Date, with respect in each case, (x) to the ownership extent that such Contracts (in the case of Contracts other than Immaterial Contracts), Permits, the Kentucky Lease and the Sales Office Leases are assigned to Buyer hereunder in compliance with any required consents of other parties or consents or approvals of governmental authorities or (y) to the extent Buyer is otherwise obtaining substantially equivalent benefits for the Business thereunder;
(b) the accounts payable and other liabilities of Balfour included as categories on the Statement of Purchased Accounts and liabilities as incurred in the ordinary course thereafter other than Intercompany Accounts to the extent: (x) included in the determination of Adjusted Working Capital pursuant to Section 1.5 or (y) as Buyer may, at its sole discretion, hereafter consent in writing with Sellers;
(c) those obligations to employees expressly to be assumed by Buyer under Article VI of this Agreement;
(d) the obligations of Balfour to honor cash discounts, dating terms and prepaid orders to the extent included in the accounts receivable of the Assets or operation Business outstanding as of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date;
(e) arising from Environmental Conditions or Releases the obligations of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after Balfour incurred in the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation ordinary course of the Business; (v) any bodily injury Business as a bailee to hold, store or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, retain finished goods located at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership facility of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement Business for customers who have previously purchased such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4goods;
(f) any Tax that may be imposed warranty obligations of Balfour arising out of sales by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable prior to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(ig) actions those liabilities, obligations, costs and proceedings based on conduct, actions, circumstances expenses to the extent that they arise out of or conditions arising or occurring on or after relate to the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or operation of the Business after the Closing Date that are applicable to (including, without limitation, Environmental Liabilities) (other than the BusinessExcluded Liabilities, as defined below).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Town & Country Corp), Asset Purchase Agreement (Commemorative Brands Inc)
Assumed Liabilities. On Subject to the Closing Dateconditions set forth in this Agreement, in addition to the Purchase Price and as additional consideration for the Purchased Assets, as of the Closing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following debts, liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of to the Assets or operation of extent relating to the Business (other than Excluded Liabilities) are referred to collectively as collectively, the "“Assumed Liabilities":”):
(ai) all of Seller’s accounts payable and accrued liabilities which are current and obligations incurred in the Ordinary Course of Seller or Buyer arising on or after Business and existing as of the Closing Date under the Assigned AgreementsDate, the Real Property Leasesexcluding Employee Bonuses relating to periods prior to November 21, and the Transferable Permits in accordance with the terms thereof, 2004 but including, without limitation, Designated Employee Payments (provided Buyer’s obligations with respect to Designated Employee Payments shall not exceed $66,345.73 and Buyer shall only be liable for Designated Employee Payments to the Assigned Agreements entered into extent that Seller pays the remaining obligation of the amount owed by Seller to the “Merchandising Professionals” listed on Schedule I to the Transition Services Agreement for performance incentives, severance payments and vacation earned during fiscal year 2005) and Seller’s obligations for accrued vacation, sick time and holiday pay to the extent the same exist as of the Closing Date, it being understood and agreed that Seller maintains a “take or lose it” policy with respect to accruals for vacation, sick time and holiday pay with an annual termination date of January 31, 2005 and that Buyer will be reimbursing Seller under the Transition Services Agreement for the remaining expenses thereof through such date;
(iii) Seller’s obligations under the Assumed Contracts relating to the ongoing Business other than liabilities for product liability or infringement claims with respect to products or services sold prior to the date hereof and Closing (ii) after regardless of whether any consent to the date hereof consistent with the terms assignment of this Agreement, except in each case such Assumed Contracts is obtained but only to the extent such liabilities Assumed Contracts are assigned to Buyer or Buyer otherwise receives the rights and obligationsbenefits of such Assumed Contracts pursuant to Section 2.7 below, but for and specifically excluding any liability or obligation relating to or arising out of such Assumed Contracts as a result of (A) any breach or default by Seller, would have been paid, performed or otherwise discharged of such Assumed Contracts occurring on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 Date, (B) any violation of law, breach of warranty, tort or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred infringement occurring on or after the Closing Date for which Buyer is responsible pursuant prior to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; or (C) any charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand);
(iii) any Remediation (whether or not such Remediation commenced before the cost to Seller incurred in the Ordinary Course of Business prior to Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or of accepting returns of merchandise from customers of the Business issued with respect to goods sold by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after before the Closing Date; and
(iiv) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings Seller’s obligations under outstanding on or arising on or after the Closing Date that are applicable merchandise purchase orders which relate solely to the BusinessBusiness and which were incurred in the Ordinary Course of Business set forth on the Purchase Orders Schedule.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Casual Male Retail Group Inc)
Assumed Liabilities. On Subject to the terms and conditions set forth in this Agreement, including Section 2.4, HEP Tulsa shall assume and pay, discharge and perform when due, those of the following Liabilities expressly allocated to it under this Section 2.3 (collectively the “HEP Tulsa Assumed Liabilities”) and ▇▇▇▇▇ Tulsa shall assume and pay when due, all of the following Liabilities except for the HEP Tulsa Assumed Liabilities (all such Liabilities assumed by either HEP Tulsa or ▇▇▇▇▇ Tulsa, the “Assumed Liabilities”) (provided that the Assumed Liabilities of any Buyer shall not include the Excluded Liabilities):
2.3.1 All Liabilities that are caused by, arise out of, or are incurred, in each case, in connection with the ownership or operation by a Buyer or its Affiliates of its allocable portion under Section 2.1.18 of the Assets on and after the Closing Date, Buyer including Liabilities arising under or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance connection with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, Assigned Contracts and Licenses and Permits acquired by the Transferable Permits Buyer in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;question.
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations 2.3.2 All Liabilities associated with the Assets or the Business in respect of Taxes for which the Buyer in question is liable pursuant to Article 10 hereof.
2.3.3 All of the obligations expressly assumed by the applicable Buyer pursuant to Section 3.4 or 6.10(a6.7, including (a) hereof;the Tulsa Global CAA Consent Decree Obligations and (b) the ODEQ Consent Order Obligations.
(d) all liabilities and obligations of Seller or Buyer 2.3.4 All Liabilities with respect to the Transferred Continuing Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether Buyer employing such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer Continuing Employees arising on and after the Closing Date (other than the Seller’s obligations as provided in Section 6.3), and all Liabilities relating to the obligations allocated to the Buyer in question as provided in Section 6.3.
2.3.5 All Liabilities of the Seller under those Orders specifically open purchase orders or other accounts payable relating to the Assets or purchased by the Buyer in question that were entered into by the Seller in operation of the Business issued in the Ordinary Course of Business prior to the Closing and that provide for the delivery of goods or services on or following the Closing.
2.3.6 Except to the extent constituting Retained Environmental Liabilities, all Liabilities, Environmental Liabilities and Costs of Environmental Compliance resulting or arising from, or attributable to any of the following (“Assumed Environmental Liabilities”):
2.3.6.1 all of those matters listed on Schedule 2.3.6;
2.3.6.2 an event or occurrence (including any Release of Hazardous Substances) with respect to the Assets purchased by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on the Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related question to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or extent occurring on or after the Closing Date;
2.3.6.3 [Intentionally omitted];
2.3.6.4 the coming into force of, actions and proceedings described in Schedule 2.3(i)or the change in, actions and proceedings arising from any Environmental Law;
2.3.6.5 any investigations or directly related preparatory or exploratory measures, notifications to any a Governmental Authority or other Assumed Liability, and generic Third Party or industry-wide actions and proceedings outstanding on or arising other Governmental Interactions on or after the Closing Date that are applicable involving or relating to the Businessownership or operation of the specific Assets purchased by the Buyer in question;
2.3.6.6 Environmental Liabilities associated with the Parcel P Property but only to the extent provided in Section 6.7.5.
2.3.7 With respect to ▇▇▇▇▇ Tulsa, lease obligations with Mitsubishi International Corporation dated June 22, 2007 (as confirmed on June 29, 2009) (the “Mitsubishi Lease”) relating to platinum associated with catalysts used at the Tulsa Refinery, and the lease obligations relating to the heavy oil terminals at Phillipsburg, Kansas.
Appears in 2 contracts
Sources: Asset Sale and Purchase Agreement (Holly Energy Partners Lp), Asset Sale and Purchase Agreement (Holly Corp)
Assumed Liabilities. On Upon the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofcontained herein, Buyer shall assume all of the Assumed Liabilities. All of the following current obligations and liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business set forth on attached EXHIBIT E (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all ), which shall set forth the obligations and liabilities being assumed as of April 30, 1998. Buyer shall also assume the liabilities of Seller incurred in the ordinary course of Seller's business between April 30, 1998 and the Closing Date; provided, however, that no liabilities or obligations relating to obsolete inventory, or unrecorded or unwritten commitments to customers or distributors shall be assumed by Buyer. Buyer shall not assume and shall under no circumstances be responsible for, and Seller shall retain and be responsible for, any liabilities or obligations of Seller related to the Assets of Seller or Buyer arising on Parent whatsoever, regardless of amount, character or after the Closing Date under the Assigned Agreementsdescription, the Real Property Leasesor whether accrued, and the Transferable Permits in accordance with the terms thereofcontingent, includingdetermined, undetermined, known or unknown or otherwise, including (without limitation, ) any obligation or liability whatsoever arising from the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms conduct of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach Seller's business or default by Seller, would have been paid, performed or otherwise discharged on Parent's business at or prior to the Closing Date other than the Assumed Liabilities. Furthermore, and are without limiting in any way the foregoing, Buyer shall not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 assume and shall under no circumstances be responsible for, and Seller shall retain and be responsible for, any liabilities or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable related to the extent included among the items causing an adjustment employees, consultants and contractors of Seller or Parent whatsoever, regardless of amount, character or description, or whether accrued, contingent, determined, undetermined, known or unknown or otherwise, including (without limitation) any obligation or liability whatsoever arising from any employment event or from any employment, consulting or contracting agreement related to the Base Purchase Price contemplated in Section 3.3;
(c) all periods or entered into prior to the Closing. Without limiting the breadth of the foregoing provisions, Seller shall retain and be responsible for, any liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of arising from any representation by Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership Parent concerning payment of any Assets salary continuation, any representation by Seller or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation Parent concerning extension of any Environmental Condition or Release of Regulated Substances arising from the storagetermination date, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed representation by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on Parent concerning payment of any termination allowance, any representation by Seller or Parent concerning payment of any retention allowance, any representation by Seller or Parent concerning payment of any accrued benefit and after the Closing Date under those Orders specifically relating to the Assets any representation by Seller or the Business issued by or entered into with Parent concerning any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in continuation of any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessfringe benefit.
Appears in 2 contracts
Sources: Agreement to Purchase Selected Assets (Alaris Medical Systems Inc), Agreement to Purchase Selected Assets (Alaris Medical Inc)
Assumed Liabilities. On Subject to the Closing terms and conditions set forth herein, on the Effective Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Titan shall assume and agree to pay, perform and discharge when due, without recourse to Seller, in accordance with the respective terms all obligations and subject liabilities of Braeburn under or relating to the respective conditions thereofTransferred Assets whenever arising, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”), including:
(i) all liabilities arising out of or relating to (A) claims (including product liability claims) for injury to person or property that resulted from the use or misuse of Licensed Product sold on or after the Effective Date, including the use or misuse of Licensed Product in connection with any clinical trial or (B) claims, irrespective of the Assumed Liabilities. All of legal theory asserted, to the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of extent arising from the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as or the "Assumed Liabilities":use of the Transferred Assets, in each case, on or after the Effective Date by Titan, or on their behalf in accordance with this Agreement;
(aii) all liabilities and obligations of Seller or Buyer Titan set forth in Section 6 of this Agreement;
(iii) all liabilities under the Assigned Contracts arising on or after the Closing Effective Date, but excluding those liabilities arising from a breach by Braeburn under any Assigned Contract prior to the Effective Date;
(iv) all liabilities to third party customers, third party suppliers or other third parties for the Licensed Products, to the extent relating to the Licensed Products sold or distributed after the Effective Date under the Assigned Agreementsby Titan or its Affiliates, the Real Property Leases, and the Transferable Permits or on their behalf in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case including (A) liabilities to customers under purchase orders for Licensed Product that has not yet been shipped as of the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Effective Date and are not otherwise included among (B) liabilities to suppliers or other third parties arising in the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out ordinary course of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred business on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12Effective Date;
(ev) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating Taxes apportioned to Environmental Conditions or Regulated Substances Titan pursuant to this Agreement;
(including common law vi) all liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership returns of the Assets Licensed Products sold or operation of the Business; (ii) property damage distributed by Titan or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent toits Affiliates, or migrating from any Assets prior toon their behalf in accordance with this Agreement, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Datewhenever sold; and
(ivii) actions and proceedings based on conductall other liabilities that relate to, actionsor that arise out of, circumstances Titan’s or conditions arising any of its Affiliates’ use, ownership, possession, operation, sale or occurring lease of any of the Transferred Assets on or after following the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from Effective Date or directly related to the distribution or sale of any other Assumed Liability, and generic of the Licensed Product by Titan or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessits Affiliates.
Appears in 2 contracts
Sources: Termination and Transition Support Agreement, Termination and Transition Support Agreement (Titan Pharmaceuticals Inc)
Assumed Liabilities. On the Closing Dateterms and subject to the conditions contained in this Agreement, Buyer or at the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall Closing, Purchaser will assume and agree to discharge and perform when due, without recourse to Seller, in accordance with the respective terms and subject due (i) all Liabilities arising out of or relating to the respective conditions thereofownership, all operation and use of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Purchased Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with operation and conduct of the terms thereof, including, without limitation, STB Business after the Assigned Agreements entered into by Seller (i) prior to the date hereof and Closing Date; (ii) all Liabilities arising after or otherwise required to be performed under any Seller Contract or the NXP Purchaser Orders included in the Purchased Assets or any lease with respect to any Transferred Leases after the date hereof consistent Closing Date (other than those which are not assignable under Section 365 of the Bankruptcy Code or as to which Consent is required to be obtained from any Person in order to permit the sale or transfer of the Seller Contract), including Seller Contracts assumed pursuant to Section 7.9; (iii) Closing Trade Payables (provided such Liability is included in the calculation of Closing Working Capital) other than the Inventory Contingency Accrual; (iv) the obligation to credit to all Transferred Employees all vacation or other paid time off accrued or vested for each such Transferred Employee as of the Closing Date (“Assumed PTO”); provided, however in the case of clause (ii) and clause (iii) Purchaser is not assuming any Liabilities under any Seller Contract or any lease with the terms of this Agreement, except in each case respect to the extent such liabilities and obligations, but for any Transferred Leases that relates to a breach of or default by Sellerunder, would have been paidor any non-compliance with Laws with respect to, performed any such Seller Contract or otherwise discharged lease that occurred on or prior to the Closing Date and are Purchaser is not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 assuming any Liabilities for wages, bonuses, retention bonuses or to the extent the same arise out of payments, employee benefits, accrued vacation, or other accrued or vested paid time off, assessments, severance or other employment compensation for any such breach employees, or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Dateemployer Taxes, including but not limited to: (i) costs of compliance (including capitalwithout limitation, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at vesting of any Off-Site Locationequity grants upon the closing of the Contemplated Transactions other than Assumed PTO, or unpaid amounts to any consultants of the Company or any Subsidiary of the Company accrued or arising from the arrangement for such activities, on or after prior to the Closing Date, of Regulated Substances generated in connection with (the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a“Assumed Liabilities”)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Entropic Communications Inc)
Assumed Liabilities. On (a) As additional consideration for the purchase of the Purchased Assets, the Purchaser shall, at the Closing on the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and assume, agree to discharge when dueperform, without recourse to Sellerand in due course pay and discharge, in accordance with the respective terms following debts, obligations and subject to the respective conditions thereof, all liabilities of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of relating to the Business (other than Excluded Liabilities) are referred to collectively as collectively, the "Assumed Liabilities":):
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to any current liabilities of the date hereof and (ii) after Seller incurred in the date hereof consistent with the terms ordinary course of this Agreement, except in each case business to the extent such liabilities are set forth on the face of the Closing Balance Sheet (rather than in any notes thereto) and obligationsare of the type of the current liabilities shown on the face of the Pro Forma Balance Sheet (rather than in any notes thereto);
(ii) obligations of the Seller under those Contracts included in the Purchased Assets that arise after the Closing, but for except to the extent that any such obligations arise out of a breach or default by the Seller thereunder prior to the Closing; and
(iii) the obligations of Seller under the Seller IRB.
(b) All liabilities of the Seller of any nature whatsoever, whether accrued or unaccrued, known or unknown, fixed or contingent, that are not Assumed Liabilities are "Non-Assumed Liabilities." Except to the extent expressly included in the definition of "Assumed Liabilities," the Non-Assumed Liabilities include all liabilities of the Seller: (i) relating to Taxes, would have been paid(ii) relating to any breach or alleged breach of contract, performed default, breach or otherwise discharged on alleged breach of warranty by the Seller (including any warranty claims with respect to products manufactured or sold by the Seller prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated SubstancesDate), whether such liabilitytort, responsibility derelict, infringement, or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Law by the Seller, including violations of ERISA or any other Law applicable to any employee benefit plan of the Seller including the Employee Plans (iii) relating to Hazardous Substances or arising under Environmental Laws occurring prior toand specifically relating to any matter set forth on Section 3.06 of the Disclosure Schedule; (iv) arising from or relating to Seller's termination of, on or after any employment-related claim asserted by, an employee of the Closing DateSeller, including claims for wrongful or illegal termination, severance pay, accrued vacation or sick days (except as specifically set forth above), payments owed to any employee pursuant to any employer-matching provision of any Employee Plan, or other employment-related claims, together with respect all costs or liabilities associated with any such employees, (v) related to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances atSeller, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; and (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership indebtedness for money borrowed of the Assets Seller. Purchaser shall not assume or become liable for the operation payment or performance of any Non-Assumed Liability.
(c) This Section 3.06 is not intended to and shall not benefit any Person other than Seller and Purchaser.
(d) All of the Business; Non-Assumed Liabilities shall remain and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from be the storagedebts, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation obligations and liabilities of the Assets; providedSeller, that nothing set forth in this Section 2.3 and Purchaser shall require Buyer to assume have no liability or responsibility for any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business debts, obligations or use of liabilities arising therefrom. Seller covenants and agrees with Purchaser that it shall timely perform and discharge the Assets on or after the Closing DateNon-Assumed Liabilities, except for any Income Taxes attributable subject to the income terms and conditions of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessthis Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Caraustar Industries Inc), Asset Purchase Agreement (Caraustar Industries Inc)
Assumed Liabilities. On At the Closing DateClosing, in accordance with and pursuant to the terms and conditions of this Agreement, Buyer (and/or one or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee more of its designated Subsidiaries) shall assume and agree to satisfy and discharge when duethe following Liabilities, without recourse to Seller, in accordance with the respective terms and subject except to the respective conditions thereofextent such Liabilities constitute Excluded Liabilities (collectively, all of the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) all liabilities and obligations Liabilities arising out of Seller or Buyer relating to any Acquired Asset or the operation of the Business incurred or accrued after the Closing, including all Liabilities arising out of or relating to the design, manufacture, testing, marketing, Labeling, distribution, use or sale of any Products on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerClosing;
(b) all liabilities Liabilities to suppliers for materials and obligations of Seller for accounts payable services related solely to the extent included among the items causing an adjustment Business ordered prior to the Base Purchase Price contemplated in Section 3.3Closing, but scheduled to be delivered or provided thereafter, and all Liabilities to customers under purchase orders received for Products that have not yet been shipped at the Closing;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant subject to Section 3.4 2.5, all Liabilities under any Business Contracts, IP Contracts or 6.10(a) hereofany other Contracts that are assigned to Buyer hereunder at or subsequent to the Closing, including volume rebate obligations (but excluding, for the avoidance of doubt, any Liabilities that relate to any breach, default or violation thereunder by Seller Parent or any Affiliate of Seller Parent prior to the Closing);
(d) all liabilities and obligations of Seller or Buyer Liabilities with respect to the Transferred Employees incurred on or returns of Products sold after the Closing Date Closing, including all Liabilities for which Buyer is responsible pursuant to Section 6.12any credits, rebates, refunds or other amounts payable in respect of any such returned Product;
(e) all liabilities, responsibilities and obligations Liabilities with respect to the employment by Buyer or a Subsidiary of Seller Buyer of the Transferred Employees following the Closing;
(f) all Liabilities under any Permits or Buyer Regulatory Registrations included in the Acquired Assets arising under Environmental Laws out of or relating to Environmental Conditions the period beginning at the Closing;
(g) all Liabilities to make royalty, milestone or Regulated Substances (including common law liabilities relating deferred payments or any other contingent payments to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of third parties in connection with the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, Products sold on or after the Closing Date;
(h) all Liabilities involving any product recalls, adverse events or similar events related to the Business with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, Products sold on or after the Closing Date;
(i) all Liabilities for (i) Transfer Taxes of Buyer as described in Section 8.1 and (ii) Taxes (other than Transfer Taxes) attributable to the Acquired Assets or the operations or the income of the Business for any Post-Closing Tax Period; and
(iiij) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date Liabilities with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after period following the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable respect to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising clinical studies identified on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i2.3(j), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Medicines Co /De)
Assumed Liabilities. On As additional consideration for the transfer of the Purchased Assets to Purchaser over and above the Purchase Price, effective as of the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree only the following Liabilities of Sellers (collectively, the “Assumed Liabilities”):
(a) any obligation of Sellers to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all honor Gift Certificates that remain outstanding as of the Assumed Liabilities. All Closing Date, whether or not such Gift Certificates were issued prior to or after the commencement of the following liabilities and obligations Chapter 11 Cases of Seller or Buyer which relate toSellers. A historical summary of all Sellers’ Liabilities relating to Gift Certificates is listed on Schedule 2.3(a); provided, or arise by virtue of Seller's or Buyer's ownership however, the Purchaser’s assumption of the Assets Liabilities arising from the Gift Certificates shall include all such Liabilities even if they are greater than the historical amounts on Schedule 2.3(a);
(b) all Liabilities arising out of the ownership or operation of the Business (other than Excluded Liabilities) are referred to collectively as Purchased Assets after the "Assumed Liabilities":Closing Date;
(ac) all liabilities Liabilities of Sellers under any of the Purchased Contracts (which shall include, without limitation, all Cure Costs);
(d) all Liabilities of Sellers under any Large Party Reservation relating to any Acquired Restaurant made with the payment of a Large Party Deposit at any time before the Closing Date and obligations scheduled to be honored after the Closing Date;
(e) all Liabilities of Seller or Buyer Sellers as of the Closing Date under Sellers’ “Konavores” customer loyalty program;
(f) all Liabilities related to Environmental Laws arising on or after the Closing Date under federal, state and local law relating to or arising out of or in connection with the Assigned AgreementsPurchased Assets;
(g) accrued vacation, the Real Property Leasessick pay, and other paid time off of the Transferable Permits Transferred Employees and all other restaurant level Business Employees that are not Transferred Employees as provided in accordance Section 13.3, as such amounts may change (increase or decrease) in the ordinary course of the Business pending the Closing Date; provided, however, that Sellers shall provide Purchaser with any backup or information related to the terms thereofcalculation and determination of such amounts as may be reasonably requested by Purchaser from time to time;
(h) ordinary course payroll of Transferred Employees (i.e. paid in the ordinary course of the Sellers’ current payroll practices) coming due and payable after the Closing, including, without limitation, which may be attributable in whole or in part to payroll periods preceding the Assigned Agreements entered into by Seller Closing Date;
(i) all Liabilities of Sellers for accrued sales, use and similar Taxes as of the Closing (other than personal property taxes);
(j) all accrued payroll Taxes as of the Closing Date (and not paid by Sellers prior to the date hereof and (iithereto) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities arising and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or related to the period between the date that is 21 calendar days prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(ik) actions all post-Petition trade payables of the Business that come due after the Closing, including all credit card merchant fees, and proceedings based on conductpost-Petition obligations to customers of Sellers for refunds, actionsrebates, circumstances or conditions arising or occurring on or after returns, discounts and the like as of the Closing Date, actions and proceedings but in each of the foregoing cases described in Schedule 2.3(i), actions this clause only to the extent the same were incurred by Sellers in the ordinary course of the Business from and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to commencement of the BusinessChapter 11 Cases.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Kona Grill Inc), Asset Purchase Agreement (ONE Group Hospitality, Inc.)
Assumed Liabilities. On In partial consideration for the sale of the Purchased Assets by the Seller, on the Closing Date, Buyer or Date the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree to discharge when due, without recourse to Seller, in accordance with become primarily responsible for the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All payment or other satisfaction of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership Liabilities of the Assets or operation of the Business Seller (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(aA) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreementsterm loan payable to Merr▇▇▇ ▇▇▇c▇ ▇▇▇iness Financial Services, the Real Property LeasesInc. in an amount not to exceed $85,000, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into secured by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise computer equipment included among the items causing an adjustment to Acquired Assets (the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;"Merr▇▇▇ ▇▇▇t"); and
(bB) all liabilities accrued payroll and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities payroll taxes, vacation time, medical insurance and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or other accrued benefits as of the Closing Date.
(C) accrued taxes of the Seller, except income taxes of the Seller, whether previously accrued or arising out of the transaction contemplated hereby, and except sales and use taxes arising out of the sale of the Purchased Assets pursuant hereto; and
(D) obligations under all Seller Contracts, including but obligations under all capital leases of the Seller in effect as of the Closing Date. For purposes of determining whether a lease is a capital lease, the conclusion of the Purchaser's independent auditors shall be binding on the parties. The Purchaser shall not limited to: (i) costs assume any Liability of compliance (including capital, operating and other costs) relating to any violation or alleged violation the Seller except those Liabilities described above. As of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership parties shall jointly prepare and agree upon a schedule of Assumed Liabilities, which shall be attached hereto as Exhibit 2(a)(ii), and no Liability of the Assets Seller which is excluded from such schedule shall be assumed by the Purchaser. The Seller shall remain responsible for all Liabilities not assumed by the Purchaser hereunder, and shall indemnify and hold the Purchaser harmless from and against any and all claims, assessments, damages, Liabilities and costs suffered by the Purchaser in respect of or operation arising out of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after assertion by any Person that the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from Purchaser is responsible for any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation Liability of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, Seller that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other is not an Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Response Oncology Inc), Asset Purchase Agreement (Seafield Capital Corp)
Assumed Liabilities. On In connection with its acquisition of the Closing DateAssets, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following those liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or and after the Closing Date with respect to: (a) the Assumed General Contracts, the Personal Property Leases, and the Real Property Leases, (b) those term loans or installment loans payable by Seller and listed on the attached Schedule 3.1(b) but only to extent the ownership proceeds of any Assets such loan payables were used to acquire equipment or operation vehicles used in the ordinary course of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (viic) any Remediation of any Environmental Condition the employment matters specified in Article 8 (collectively, the “Assumed Liabilities”). The Parties acknowledge that until the Closing, Seller may make or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection incur capital expenditures with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related respect to the Business and outstanding on may expand into territories in which Seller currently does not conduct its Business, but such capital expenditures or arising after expansion are subject to the prior written consent of Purchaser in accordance with Section 7.4. If, in the ordinary course of the Business, Seller desires to make or incur such capital expenditures or expand its Business and the same is consented to by Purchaser in writing pursuant to Section 7.4, then Seller may finance such expenditures and costs of expansion by borrowing sufficient funds from Standard Federal Bank and the new loans payable by Seller shall be added to Schedule 3.1 (b) and assumed by Purchaser at Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other as an Assumed Liability; provided, however, that the terms of such borrowings and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable loans must be approved by Purchaser in writing in accordance with Section 7.4. Notwithstanding anything to the contrary contained in this Agreement, to the extent Seller desires to make or incur such capital expenditures or expand its Business and the same is not consented to by Purchaser in writing pursuant to Section 7.4, then Seller shall have no liability whatsoever to Purchaser for Seller’s failure to make or incur such capital expenditures or expand its Business. Purchaser shall be in entitled to withhold any and all of the consents referred to above, in its sole and absolute discretion, without any liability whatsoever to Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tandem Health Care, Inc.), Asset Purchase Agreement (Tandem Health Care, Inc.)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofof this Agreement, Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, assume only the following Liabilities of Graco and the Asset Selling Subsidiaries (the following Liabilities, together with any and all Liabilities of the Acquired Subsidiaries, being the “Assumed Liabilities. All of ”) and no others, at the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities"Closing:
(a) all liabilities Graco’s Liabilities and obligations of Seller under any Acquired ITW Ancillary Agreement that is assigned or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior transferred to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligationsPurchasers, but for a not including any Liability arising out of any breach or default of such Acquired ITW Ancillary Agreement by SellerGraco, would have been paid, or relating to portions performed or otherwise discharged to be performed by Graco, on or prior to before the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerDate;
(b) all liabilities subject to Section 2.3(r), the Asset Selling Subsidiaries’ Liabilities and obligations under any Acquired Contract that is assigned or transferred to Purchasers, but not including any Liability arising out of Seller for accounts payable any breach or default of such Acquired Contract by any Asset Selling Subsidiary, or relating to portions performed or to be performed by any Asset Selling Subsidiary, on or before the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Closing Date;
(c) all liabilities and obligations associated Liabilities of the Asset Selling Subsidiaries that appear on the Final Closing Balance Sheet, as finally determined in accordance with Section 3.2(b), except for the Assets or the Business Liabilities described in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof2.4;
(d) all liabilities and obligations Liabilities of Seller or Buyer Asset Selling Subsidiaries with respect to the Transferred Employees incurred on any Owned Real Property or after the Closing Date for which Buyer is responsible pursuant to any Leased Real Property or current Liquid Finishing Business operations at any Owned Real Property or Leased Real Property arising under any Environmental Law (except as provided in Section 6.122.4(c));
(e) all liabilities, responsibilities Liabilities under any purchase orders with suppliers and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as vendors of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, Asset Selling Subsidiaries with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after Liquid Finishing Business outstanding at the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed all Liabilities of Sellers assumed by any federal, state or local government on the ownership, sale Purchasers under Sections 6.3(a) and (except as otherwise provided in Section 3.4 or 6.10(ai)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations Liabilities of Seller or Buyer the Asset Selling Subsidiaries with respect to any Products arising on and after the Closing Date under those Orders specifically any intellectual property law at any time, including laws relating to patent infringement and including Liabilities arising out of the Assets or the Business issued by or entered into with any Governmental Authority and listed in matters set forth on Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval);
(h) customer advancesGraco’s and each Asset Selling Subsidiary’s obligations under the ITW Purchase Agreement to the extent relating to the Liquid Finishing Business, customer deposits including, but not limited to, any obligation of Graco or any Asset Selling Subsidiary to cause any Acquired Subsidiary to take or refrain from taking any action relating to the Liquid Finishing Business, but not including any Liability arising out of any breach of such obligations by Graco or any Asset Selling Subsidiary, or relating to portions performed or to be performed, on or before the Closing Date;
(i) all Liabilities to the extent relating to the Liquid Finishing Business that constitute Assumed Liabilities under and construction advances, unperformed service obligations, Easement relocation obligations, as defined in the ITW Purchase Agreement;
(j) subject to and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projectsaccordance with, in each case directly related case, the terms, conditions and limitations contained in Article 8 of the ITW Purchase Agreement: all of Graco’s and each Asset Selling Subsidiary’s Liabilities under Section 8.3(b) or (c) of the ITW Purchase Agreement to indemnify the Seller Group (as defined in the ITW Purchase Agreement and, as used herein, the “ITW Purchase Agreement Seller Group”) against, and hold the ITW Purchase Agreement Seller Group harmless from, any and all Damages (as defined in the ITW Purchase Agreement and, as used herein, “ITW Purchase Agreement Damages”) that are incurred by the ITW Purchase Agreement Seller Group arising from or relating to the matters: (A) set forth in Section 8.3(b) of the ITW Purchase Agreement, solely to the extent such ITW Purchase Agreement Damages arise from or relate to Purchaser Parent’s, US Purchaser’s or a Purchaser’s failure to discharge and satisfy, or failure to cause to be discharged and satisfied, the Assumed Liabilities described in Section 2.3(h) hereof; and (ii) set forth in Section 8.3(c) of the ITW Purchase Agreement, solely to the extent such ITW Purchase Agreement Damages arise from or relate to an Assumed Liability;
(k) all Liabilities of Graco and the Asset Selling Subsidiaries for receiving and processing claims under any Product warranty, scheduling the repair or replacement of any item covered under any such warranty, repairing or replacing any item covered under any such warranty and paying all costs and expenses of the foregoing;
(l) all Liabilities of Graco and the Asset Selling Subsidiaries arising under the pension plans relating to the Employees or retirees of the Liquid Finishing Business located in Germany;
(m) any Liability for (i) Non-Income Taxes of Graco (or any Affiliate of Graco) relating to the Liquid Finishing Business, the Acquired Assets or the Assumed Liabilities for any Pre-Closing Tax Period, in each case, to the extent reflected on the Final Closing Balance Sheet; (ii) Non-Income Taxes of Purchaser Parent or US Purchaser (or any Affiliate of Purchaser Parent or US Purchaser following the Closing) or relating to the Liquid Finishing Business, the Acquired Assets or the Assumed Liabilities for any Post-Closing Tax Period; (iii) Income Taxes of Purchaser Parent or US Purchaser (or any Affiliate of Purchaser Parent or US Purchaser) or relating to the Liquid Finishing Business, the Acquired Assets or the Assumed Liabilities for any period that is a Post-Closing Tax Period; and outstanding on (iv) Taxes that are the responsibility of Purchaser Parent or arising after US Purchaser pursuant to Section 6.4;
(n) any Extra-Liquid Finishing Business Intercompany Account Payable which is a Liability of an Asset Selling Subsidiary;
(o) any Retained Powder Finishing Business Account Payable which is a Liability of Graco Australia;
(p) the Closing DateAssumed Transition Services Liabilities and the Assumed Transitional Trademark License Liabilities;
(q) all Debt-Like Liabilities; and
(ir) actions the Asset Selling Subsidiaries’ Liabilities and proceedings based on conductobligations under any Real Property Leases constituting Acquired Contracts that are assigned or transferred to Purchasers, actions, circumstances including any Liability relating to portions performed or conditions arising or occurring to be performed by any such Asset Selling Subsidiary on or after before the Closing Date, actions in each case, to the extent reflected on the Final Closing Balance Sheet, but not including any Liability arising out of any breach or default of any such Real Property Lease by any such Asset Selling Subsidiary or any Liabilities under any such Real Property Lease arising under any Environmental Laws. For the avoidance of doubt, any and proceedings described in Schedule 2.3(i)all Liabilities of the Acquired Subsidiaries (including, actions and proceedings arising from or directly related but not limited to, the Retained Powder Finishing Business Accounts Payable which are Liabilities of the Acquired Subsidiaries) shall continue to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after be Liabilities of the Acquired Subsidiaries following the Closing Date that and, accordingly, such Liabilities are applicable being indirectly assumed by Purchasers at the Closing by virtue of such Liabilities continuing to be Liabilities of the BusinessAcquired Subsidiaries following the Closing under the ownership of Purchasers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Graco Inc), Asset Purchase Agreement (Carlisle Companies Inc)
Assumed Liabilities. On Other than the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business expressly set forth below in Sections 2.2.1 and 2.2.2 (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all ), Buyer is not assuming and shall not be liable for any liabilities and or obligations of Seller whatsoever, whether or not any such liability or obligation pertains to the Business or the Property.
2.2.1 Buyer arising shall, effective as of the Closing Date, or, if later, the date of the assumption thereof by Buyer, assume and perform all liabilities which first accrue or arise on or after the Closing Date or such assumption date, as the case may be, (i) under the Assigned Agreements, the Real Property LeasesLease and Related Agreements being assumed by Buyer under Section 1.1.1, or (ii) under the Other Leases described in EXHIBIT 1.1.4(I), and under the Transferable Permits Other Contracts described in accordance with EXHIBIT 1.1.4(II) which are designated by the terms thereofBuyer as being assumed by the Buyer pursuant to Section 3.6, including, without limitation, or (iii) under the Assigned Agreements entered into by Intangible Property listed in EXHIBIT 1.1.5 (other than for Excluded Assets). EXHIBIT 2.
2.1 sets forth all amounts known to Seller (i) prior to be due and owing as of the date hereof under each of the Real Property Lease and (ii) after Related Agreements, under each of the date hereof consistent Other Leases and Contracts, and with respect to the terms of Intangible Property. Buyer agrees to pay and perform all liabilities up to the specific respective amounts set forth in EXHIBIT 2.2.1 for each such Real Property Lease and Related Agreements, Other Contracts and Leases and Intangible Property which are assumed and assigned to it pursuant to this Agreement. Seller shall pay and perform all other amounts, except in each case to the extent such liabilities and obligationsif any, but for a breach which accrued or default by Seller, would have been paid, performed or otherwise discharged on or arose prior to the Closing Date under the Real Property Lease and are not otherwise included among Related Agreements, under the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities Other Leases and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities Contracts and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after Intangible Property which are assumed and assigned to Buyer pursuant to this Agreement, including without limitation all cure amounts, not set forth in EXHIBIT 2.2.1, which the Closing Date for which Bankruptcy Court orders to be paid as a condition to the assumption and assignment thereof to Buyer.
2.2.2 The Buyer is responsible will assume only those additional liabilities of the Seller, if any, relating to the items of Property listed in EXHIBIT 2.2.2, unless Buyer elects to exclude such items of Property pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances1.2(xiii), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ddi Corp), Asset Purchase Agreement (Ddi Corp)
Assumed Liabilities. On the Closing Date, Buyer Oscient shall assume, and shall pay and perform and discharge (or the UniSource Designee acquiring the Assets shall deliver cause to Seller the Assignment be paid, performed and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge discharged) when due, without recourse to Seller, in accordance with the respective terms following Liabilities of Reliant and subject its Affiliates related to the respective conditions thereofProduct, all of the Acquired Assets, the Product Intellectual Property and/or the Product Line Operations, but excluding the Excluded Liabilities (collectively, the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) all liabilities Liabilities to be paid, performed or discharged under the Assigned Contracts and obligations Orders arising on or after the Closing Date, including, without limitation, under the purchase orders issued by Reliant under the Assigned Contracts and Orders not yet paid-for, delivered or provided as of Seller the Closing Date, and all purchase orders from customers for Product not yet paid-for, delivered or Buyer provided as of the Closing Date, and excluding such Liabilities that were otherwise required to have been paid, performed or discharged prior to the Closing Date or relate to goods received by, or services provided to, Reliant, prior to the Closing Date;
(b) all Liabilities of Reliant and its Affiliates under the Packaging Agreement arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into assumed by Seller (i) prior Oscient pursuant to the date hereof and (ii) after the date hereof consistent with the terms of this AgreementPackaging Agreement Assignment, except in each case excluding such Liabilities that were otherwise required to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among under the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Packaging Agreement;
(c) all liabilities Liabilities of Reliant and obligations associated with its Affiliates under the Assets Ethypharm Agreement arising on or after the Business in respect of Taxes for which Buyer is liable Closing Date and assumed by Oscient pursuant to Section 3.4 the Ethypharm Agreement Transfer Agreement, excluding such Liabilities that were otherwise required to have been paid, performed or 6.10(a) hereofdischarged under the Ethypharm Agreement prior to the Closing Date or relate to goods received by, or services provided to, Reliant prior to the Closing Date; provided, however, that for the avoidance of doubt, the Parties agree and acknowledge that any milestone payment that becomes due and payable after the Closing Date under the Ethypharm Agreement shall be the responsibility and sole obligation of Oscient and shall not constitute a Reliant Prorated Liability;
(d) all liabilities Liabilities of Reliant and obligations of Seller or Buyer with respect to its Affiliates under the Transferred Employees incurred on or Settlement first arising after the Closing Date for which Buyer is responsible pursuant to Section 6.12and assumed by Oscient under the Settlement Agreement Assignment;
(e) all liabilities, responsibilities Taxes that are the responsibility of Oscient pursuant to Section 3.4 and obligations Section 7.3 of Seller or Buyer arising under Environmental Laws or this Agreement and all Taxes relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances)the Acquired Assets, whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating Product and/or the Product Line Operations attributable to any violation period or alleged violation of Environmental Laws occurring prior to, partial period beginning on or after the Closing Date, with respect ;
(f) all Losses arising out of claims of third parties due to the ownership use or sale of the Assets or operation of the Business; (ii) property damage or natural resource damage any Product (whether such damages were manifested before or not defective) sold on and after the Closing Date) Date by or on behalf of any Oscient or any of its Affiliates and all Losses arising from Environmental Conditions out of claims of third parties due to or Releases relating to any voluntary or involuntary recall of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, the Product sold on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) subject to Section 2.4, Section 7.8 and Section 7.9, all liabilities (i) rebates claimed or accrued by or under any Rebate Programs relating to Product dispensed pursuant to a prescription after the Closing, and obligations of Seller or Buyer arising on (ii) all charges and discounts relating to group purchasing organizations, buying groups, pharmaceutical benefit management organizations, managed care organizations and rebate programs (other than the Rebate Programs), including wholesaler and chain pharmacy discounts, and indigent patient programs and patient discount programs relating to Product dispensed pursuant to prescriptions after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval(“Chargebacks”);
(h) customer advancessubject to Section 2.3 and Section 7.7, customer deposits and construction advancesall obligations for replacements of, unperformed service obligationsor refunds for Product, Easement relocation obligationswhether or not bearing Reliant’s name, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessall of Oscient’s Prorated Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.), Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.)
Assumed Liabilities. On Upon the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofset forth herein, all Buyer hereby assumes and agrees to perform and discharge in accordance with their terms, without recourse to Sellers, only the following Liabilities of Sellers (the “Assumed Liabilities. All of ”), with such assumption to be effected herein and set forth in the following liabilities Assignment and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities"Assumption Agreement:
(a) all Liabilities in respect of the Acquired Contracts but only to the extent that such Liabilities thereunder required to be performed after the Closing Date do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by Sellers on or prior to the Closing;
(b) any Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets, the Assumed Liabilities or the Business, in each case exclusively to the extent such Liabilities are incurred in, or attributable to, taxable periods or portions thereof beginning after the Closing Date (such Taxes for a Straddle Period to be allocated in accordance with Section 7.1);
(c) any Transfer Taxes for which Buyer is responsible under Section 7.3;
(d) all accounts payable and all accrued expenses, to the extent subject to the calculation of Net Working Capital hereunder;
(e) all lease obligations listed on Section 1.3(e) of the Seller Disclosure Schedule; and
(f) all obligations and liabilities and obligations arising out of Seller the operation of the Business or Buyer arising ownership of the Purchased Assets on or after the Closing Date under Effective Time; provided, for the Assigned Agreementsavoidance of doubt, that Buyer is not assuming any debt, liability or obligation of any Seller or any Affiliate of Seller, other than the Real Property LeasesAssumed Liabilities, and Sellers and their Affiliates shall retain all other Liabilities and obligations of Sellers and their Affiliates or otherwise related to the Transferable Permits in accordance with Business or the terms thereofPurchased Assets, whether accrued, absolute, contingent or otherwise, or whether known or unknown, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessExcluded Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Digital Media Solutions, Inc.), Asset Purchase Agreement (Digital Media Solutions, Inc.)
Assumed Liabilities. On At the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree to pay, discharge when dueor perform, without recourse to Selleras appropriate, in accordance with the respective terms following, and subject to only the respective conditions thereoffollowing, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed LiabilitiesASSUMED LIABILITIES":):
(a) all liabilities and obligations of Seller in respect of the Assumed Contracts that are disclosed in the text of the Assumed Contracts (including any exhibits or Buyer arising on or after other attachments) as delivered to Purchaser prior to the Closing Effective Date under and accrue subsequent to the Assigned Agreementseffective time of the Closing; provided, that, without limiting the Real Property Leasesgenerality of the foregoing, Purchaser shall not, and the Transferable Permits in accordance with the terms thereofdoes not, includingassume or agree to pay, without limitation, the Assigned Agreements entered into by Seller discharge or perform (i) prior any liabilities or obligations required to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default be performed by Seller, would have been paid, performed or otherwise discharged on or Seller prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 Date, (ii) any liabilities or to the extent the same arise obligations arising out of any such breach or default or out by Seller of any event which after provision of any Assumed Contract prior to the giving Closing Date, or the date of notice assignment if later, or passage of time or both would constitute a default (iii) amounts owed by Seller for goods purchased by Seller, or services provided to Seller, prior to the Closing Date;
(b) all liabilities and obligations of Seller for accounts payable in respect of the Real Property Lease that are disclosed in the text of the Real Property Lease (including any exhibits or other attachments) as delivered to Purchaser prior to the extent included among the items causing an adjustment Effective Date and accrue subsequent to the Base Purchase Price contemplated in Section 3.3effective time of the Closing; provided, that, without limiting the generality of the foregoing, Purchaser shall not, and does not, assume or agree to pay, discharge or perform (i) any liabilities or obligations required to be performed by Seller prior to the Closing Date, or (ii) any liabilities or obligations arising out of any breach by Seller of any provision of the Real Property Lease prior to the Closing Date;
(c) all liabilities and obligations associated with relating to the Assets or Transferred Business accruing after the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofClosing;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities8.3, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by one-half of any federal, state or local government on the ownership, sale (except tax incident to or arising as otherwise provided in Section 3.4 or 6.10(a)), operation a consequence of the Business negotiation or use consummation of this Agreement and the Assets on transactions contemplated hereby by Seller;
(e) any liability or obligation arising after the Closing Datewith respect to any Plant Employees employed or engaged by Purchaser after the Closing, except including any liability for salaries, wages, payroll taxes, severance pay entitlements, health, medical, retirement, vacation or deferred compensation benefits or any Income Taxes attributable other obligations or expenses arising out of or relating to the income employment by Purchaser of Sellerthe Plant Employees or Purchaser's termination of such employees. Purchaser shall retain and shall assume and discharge all liabilities and costs under the Consolidated Omnibus Budget Reconciliation Act, as amended ("COBRA") (including liabilities for violations thereof) as to those employees Plant Employees that commence employment with Purchaser immediately following the Closing for all "qualifying events" (as defined in COBRA) occurring with respect to those Plant Employees that commence employment with Purchaser and their dependents after the Closing;
(f) all accrued but unpaid vacation determined as of the Closing Date for the Transferring Employees (for clarification purposes, Purchaser shall not incorporate such vacation expense for the Transferring Employees into the cost of goods under the Supply Agreement);
(g) all liabilities any liability and obligations of Seller or Buyer arising on and after obligation, including open purchase orders that relate to the new Thomas Engineering, Inc. tablet press, approved by Purchaser in ▇▇▇▇▇ng prior to the Closing Date under those Orders specifically relating to Date, that are not incurred or paid as of the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;Closing Date; or
(h) customer advances, customer deposits those certain liabilities and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required obligations for inventory in transit at Closing that are (x) set forth on SCHEDULE 1.4.1(h) as amended no less than three business days prior to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable with the consent (not to be unreasonably withheld) of the BusinessPurchaser and (y) not included in the Closing Inventory Balance.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Adams Laboratories, Inc.), Asset Purchase Agreement (Adams Respiratory Therapeutics, Inc.)
Assumed Liabilities. On (a) Pursuant to the terms of Assignment and Assumption Agreements in the form attached as Attachment A, Buyers agree to assume those trade payables (each a “Trade Payable”, and collectively, “Trade Payables”) incurred in the ordinary course of the Business, as determined by Buyers in their sole discretion, in an amount not to exceed $540,000 in the aggregate, and excluding those liabilities described in paragraph 1.2(b). Buyers shall not be deemed to have assumed any specific Trade Payable until Buyers add such Trade Payable to Schedule 1.2(a), by identifying the payee and amount of such Trade Payable, which schedule may be amended by Buyers from time to time after Closing. If Buyers elect in their discretion to satisfy any trade payables of Sellers not included among the Trade Payables, then if such assumption is included on the closing statement at Closing, the Purchase Price shall be reduced by such amount, and if such assumption and payment occurs after Closing, Sellers agree to reimburse Buyers for any amount paid within 10 business days after written notice of payment by Buyers (and Buyers shall have a right of setoff for any unreimbursed amounts against any Contingent Consideration due to Sellers pursuant to paragraph 2.2). Buyers’ agreement to assume the Trade Payables is conditioned upon Sellers' agreement to pay its trade payables in the ordinary course of business through the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement . Trade Payables assumed pursuant to which Buyer or such UniSource Designee this paragraph 1.2 shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the be defined as “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;”).
(b) all The parties acknowledge and agree that Buyers are not assuming, and Trade Payables do not include, liabilities and or other obligations of Seller Selling Parties for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capitalborrowed money, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent tocapital leases for leased equipment and other tangible personal property, or migrating from any Assets prior to, on or after the Closing Date; (iii) amounts due to any Remediation (governmental agency or instrumentality, whether federal, state or not such Remediation commenced before local, relating to Medicare/Medicaid reimbursements or similar reimbursement obligations relating to the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior toBusiness, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on taxes, including without limitation, income, sales or use, franchise, or withholding taxes, or (v) amounts payable to any Seller Affiliates or entities or individuals affiliated with any Selling Party.
(c) Sellers acknowledge and agree that they shall retain all liabilities, whether known or unknown, arising out of or relating to the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business through the Closing Date or use arising out of or with respect to the Assets on Purchased Assets, including the ownership or after leasing thereof, through the Closing Date, and that Buyers are not assuming any liabilities of Sellers of any nature, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions obligations accruing after Closing under the Assumed Contracts and proceedings based on conductAssumed Leases, actions(ii) any real property lease expenses offsetting the Purchase Price pursuant to paragraph 1.3, circumstances (iii) any accrued personal leave assumed pursuant to paragraph 1.4, (iv) any additional liabilities or conditions arising or occurring on or after accrued expenses mutually agreed upon by Sellers and Buyers and offsetting the Closing Date, actions and proceedings described in Schedule 2.3(iPurchase Price pursuant to paragraph 2.1(b), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after (v) the Closing Date that are applicable to the BusinessTrade Payables.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Almost Family Inc)
Assumed Liabilities. On Upon the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofof this Agreement, the Parties agree that, effective at the Closing, Buyer shall cause the New Operating Company (or any Additional Acquisition Entities, as applicable) to assume all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business Liabilities (other than Excluded Liabilities) are referred of Seller or any of the Retained Subsidiaries (including the Equity Sellers) to collectively as the "extent relating to the Purchased Assets or the Shares or otherwise primarily relating to the Business, of whatever nature, whether presently in existence or arising hereafter, except for the Excluded Liabilities (the “Assumed Liabilities"”), including the following:
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date Retained Subsidiaries under the Assigned Agreements, Leases comprising the Leased Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller Assumed Contracts (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, excluding any obligations that would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of constitute Indebtedness under any such breach Assumed Contract or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerLease);
(b) all liabilities and obligations of Seller for accounts payable or the Retained Subsidiaries to be performed under the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Assigned Liquor Licenses;
(c) all liabilities and obligations associated with the Assets of Seller or the Business in respect of Taxes for which Buyer is liable pursuant Retained Subsidiaries to Section 3.4 or 6.10(a) hereofbe performed under the Assigned Permits;
(d) all liabilities obligations remaining under (1) all Gift Cards to the extent honored or redeemed or required to be honored or redeemed in the manner contemplated by the Gift Card Agreement, but only to the extent such obligations are reimbursed by Seller in accordance with the Gift Card Agreement, and (2) subject to Seller’s compliance with Section 5.01(d) and Seller’s delivery to Buyer (or its designee), as a Purchased Asset related to the assumption of the obligations set forth herein, any proceeds received in connection with the sale of such arrangements, all coupons and promotional offers outstanding as of the Closing Date relating to the Business, to the extent the same were printed by or on behalf of Seller and issued or sold to customers on or before the Closing Date and such customers present the same for redemption at a Restaurant after the Closing Date, and provided that Buyer is not assuming obligations to any Governmental Authority or Taxing authority or any other Person under escheatment, unclaimed or abandoned property or similar Laws in respect thereof;
(e) all obligations of Seller Buyer for Transfer Taxes under Section 6.01 and its portion of any Property Taxes under Section 6.02;
(f) subject to Section 2.05(k), all Liabilities arising under (1) all public liability claims that are incurred prior to Closing (which, for the avoidance of doubt, includes all claims set forth on Schedule 3.10 under the heading “Litigation - Insured”) and all Pre-Closing Workers Compensation Claims, (2) Actions set forth on Schedule 3.10 under the heading “Employment-Related Actions” (other than the Bluet Matter), (3) Actions set forth on Schedule 3.11 under the heading “Non-Insured Litigation” and (4) all other Actions first arising after the date hereof and relating to the Purchased Assets or Buyer the Shares;
(g) subject to Section 2.05(m), all Environmental Liabilities arising from any fact, condition, event or circumstance occurring or existing, prior to or after the Closing, at the Business Real Property;
(h) subject to Section 2.05(e), all Liabilities with respect to the Transferred Employees incurred on and the Employee Plans solely to the extent expressly assumed by Buyer in Article VII and all Liabilities arising out of the employment of Transferred Employees by Buyer or its Affiliates from and after the Closing Date for which Buyer is responsible pursuant to Section 6.12Transfer Time;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs except to the extent an Excluded Liability, all Liabilities arising out of compliance (including capitalor in connection with any act, operating and other costs) relating omission or circumstance with respect to the Business or the Purchased Assets occurring at any violation or alleged violation of Environmental Laws occurring prior to, time on or after the Closing Date;
(j) except to the extent constituting Excluded Liabilities, and to the extent included in the final determination of Closing Date Net Working Capital in accordance with Schedule 1.01(f), all accounts payable and other current liabilities that would be required to be accrued on a balance sheet of the Business prepared in accordance with GAAP as of immediately prior to the Closing;
(k) all outstanding unpaid amounts of any checks related to the bank accounts of the Purchased Subsidiary Companies;
(l) the retention bonus obligations set forth on Schedule 2.04(l), including the employer portion of payroll Taxes thereon (the “Specified Retention Bonuses”);
(m) all Liabilities with respect to vendor rebate under the ownership of the Assets or operation of the Business; Beverage Marketing Agreement between Seller and Coca-Cola Foodservice;
(iin) property damage or natural resource damage all pre-Closing Liabilities for credit card fees;
(whether such damages were manifested before or after the Closing Dateo) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated all costs and expenses incurred by Seller and its Subsidiaries in connection with the ownership of Formations, other pre-Closing restructuring and the Assets or the operation of the Business; and (vii) any Remediation closing of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing DateRestaurants; and
(ip) actions and proceedings based on conductall Liabilities agreed to be performed by Buyer or any of its Subsidiaries (including the Purchased Subsidiary Companies) pursuant to the terms of this Agreement or any of the other Transaction Documents. Buyer’s obligations under this Section 2.04 shall not be subject to offset or reduction, actions, circumstances whether by reason of any actual or conditions arising alleged breach of any covenant or occurring on agreement contained in the Transaction Documents or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic agreement or industry-wide actions and proceedings outstanding on document delivered in connection therewith or arising on any right to indemnification hereunder or after the Closing Date that are applicable to the Businessotherwise.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Assumed Liabilities. On the Closing Date, but effective as of the Effective Time, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse only the following Liabilities of Seller (the "ASSUMED LIABILITIES"):
(i) any trade account payable reflected on the Interim Balance Sheet (other than a trade account payable to any Related Person of Seller) that remains unpaid at and is not delinquent as of the Effective Time;
(ii) any trade account payable (other than a trade account payable to a Related Person of Seller) incurred by Seller in the Ordinary Course of Business between the date of the Interim Balance Sheet and the Effective Time that remains unpaid at and is not delinquent as of the Effective Time;
(iii) any Liability to Seller, 's customers incurred by Seller in the Ordinary Course of Business for nondelinquent orders outstanding as of the Effective Time reflected on Seller's books (other than any Liability arising out of or relating to a Breach that occurred prior to the Effective Time);
(iv) any Liability to Seller's customers under written warranty agreements given by Seller to its customers in the Ordinary Course of Business prior to the Effective Time (other than any Liability arising out of or relating to a Breach that occurred prior to the Effective Time);
(v) any Liability arising after the Effective Time under any Seller Contract included in the Assets (other than any Liability arising out of or relating to a Breach that occurred prior to the Effective Time); and
(vi) any Liability of Seller arising after the Effective Time under any Seller Contract included in the Assets that is entered into by Seller after the date hereof in accordance with the respective terms and subject to the respective conditions thereof, all provisions of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business this Agreement (other than Excluded Liabilities) are referred any Liability arising out of or relating to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) a Breach that occurred prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated SubstancesEffective Time), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business...
Appears in 1 contract
Assumed Liabilities. On Subject to the Closing Dateterms of this Agreement, Buyer or at the UniSource Designee acquiring Closing, the Assets Purchaser shall, and shall deliver to Seller cause the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall relevant Designated Purchasers to, assume and agree to become responsible for, and perform, discharge and pay when due, without recourse to Seller, in accordance with solely the respective terms and subject to following Liabilities (the respective conditions thereof, all of the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) all liabilities and obligations of Seller or Buyer Liabilities arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior related to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 conduct, operation or to the extent the same arise out ownership of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs all such Liabilities with respect to the ownership, exploitation and operation of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, the Assets incurred on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; and (ii) property damage all such Liabilities related to Actions or natural resource damage (whether such damages were manifested before or claims brought against the Business arising from events occurring after the Closing Date;
(b) all Liabilities arising from Environmental Conditions or Releases in connection with the performance of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or the Assigned Contracts after the Closing Date; , or any arrangements entered into pursuant to Section 5.16 after the Closing Date;
(iiic) any Remediation obligations under any warranty liabilities relating to Products and CDMA Services which have been supplied under any Assigned Contract but excluding any Cure Costs payable pursuant to Section 2.1.7;
(d) the obligation to post any deposits, bonds or other security in replacement of security posted under any Assigned Contract pursuant to Section 5.21 of this Agreement;
(e) all Liabilities resulting from any licensing assurances, declarations, agreements or undertakings relating to the Assigned Intellectual Property which the Sellers may have granted or committed to Third Parties, including Liabilities resulting from the assurances, declarations and undertakings made to standard setting bodies that are listed in Section 2.1.3(e) of the Sellers Disclosure Schedule;
(f) all Liabilities for, or related to any obligation for, any Tax that the Purchaser or any Designated Purchaser bears under ARTICLE VI;
(g) all obligations under any warranty liabilities relating to Products and CDMA Services which have been supplied under any Bundled Contract subcontracted to the Purchaser or any Designated Purchaser under Section 5.16(a);
(h) except to the extent otherwise expressly set forth in ARTICLE VII, all Liabilities related to or arising from any of the following: (i) the Purchaser’s or any Designated Purchaser’s (or any of their Affiliates’) employment or termination of employment (whether or not such Remediation commenced before the Closing Date arising under or commences after the Closing Datein respect of any Purchaser Employee Plan) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, Transferring Employees arising on or after the Closing Date, at(ii) the terms of any offer of employment or notice of continued employment, onas applicable, in, adjacent to any Employee who is provided an offer pursuant to Section 7.1 of this Agreement and (iii) Purchaser’s or a Designated Purchaser’s failure to offer employment to any employee that constitutes a violation of applicable Law;
(i) all Liabilities arising that relate to or migrating arise from or in connection with any Purchaser Employee Plan;
(j) all Liabilities related to Transferring Employees expressly assumed by the Assets; Purchaser or a Designated Purchaser as set forth in ARTICLE VII;
(ivk) any violations obligation to provide continuation coverage pursuant to COBRA or alleged violations any similar Law under any Purchaser Employee Plan that is a “group health plan” (as defined in Section 5000(b)(1) of Environmental Laws occurring the Code) to a Transferring Employee and/or their qualified beneficiaries with respect to a qualifying event that occurs on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing such Transferring Employee’s Transfer Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(fl) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of SellerAccrued Vacation Amount;
(gm) all liabilities Liabilities reflected in the computation of Adjusted Net Working Capital, including the Contractual Liabilities Amount, the Royalty Liability Amount and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing DateWarranty Provision Amount); and
(in) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after all other Liabilities listed in Section 2.1.3(n) of the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessSellers Disclosure Schedule.
Appears in 1 contract
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofset forth in this Agreement, and subject to the exclusion of the Excluded Liabilities, the Buyer hereby agrees, effective at the time of the Closing and from and after the Closing, to assume and agree to pay, discharge and perform in accordance with their terms, only the following liabilities, commitments and obligations of the Sellers arising from or relating to the Transferred Assets or the Business, as the same shall exist as of the Closing (the “Assumed Liabilities”):
(i) all liabilities, commitments and obligations arising under any of the Assumed Liabilities. All of Contracts to the following liabilities extent such liabilities, commitments and obligations of Seller are required to be performed on or Buyer which relate toafter, or arise relate to any period beginning on or after, the Closing and to the extent that they do not relate to any failure to perform or other breach, default or violation by virtue of Seller's a Seller under any such Assumed Contract prior to the Closing;
(ii) any liability or Buyer's ownership of obligation with respect to Taxes imposed with respect to the Transferred Assets or the operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising for any period beginning on or after the Closing Date under (none of which, for the Assigned Agreementsavoidance of doubt, shall include any Taxes arising from the Real Property Leases, and Sellers’ operation of the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or Business prior to the Closing Date and are not otherwise included among or the items causing an adjustment to Sellers’ operation at any time of any business other than the Base Purchase Price contemplated Business), taking into account the allocation described in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller2.08(a);
(biii) all liabilities and the obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to Business Employees arising under or otherwise set forth in the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12Employee Matters Agreement;
(eiv) all liabilities, responsibilities the obligation of CCR under that certain Amended and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued Restated Monster Energy Distribution Agreement dated as of June 12, 2015, between Monster Energy Company (“MEC”) and CCR, to pay, on a semi-annual basis, to the Coca-Cola North America division of TCCC, an amount per standard physical case of Monster brand beverage products sold in the Territory following the Closing Date, including but not limited to: (i) costs and during the term of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, Buyer’s Monster distribution agreement with respect MEC equal to the ownership of amount to be paid by the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded TCCC on a semi-annual basis under the Buyer MEC Consent Agreement per standard physical case of Monster brand beverage products sold in Section 2.4;
the Additional Territory (f) any Tax that may be imposed by any federal, state or local government on as defined in the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(aBuyer MEC Consent Agreement)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(iv) actions the liabilities of the Business included in Net Working Capital or Other Assets and proceedings based Liabilities (in each case, other than any Retained Liabilities) on conductthe Final Amounts Schedule, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable but only to the Businessextent of the amounts so included.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Assumed Liabilities. On the Closing DateThe Sellers, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment jointly and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and severally, agree to discharge perform and pay when dueowning all debts, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, set forth on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) Exhibit C attached hereto and any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection liabilities associated with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on Target during the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), Seller's operation of the Business or use prior to the Closing Date (the "Assumed Liabilities"). Upon written notice from Buyer, Sellers agree to pay such liabilities within thirty (30) days after the receipt of written demand from the Buyer for payment. Any payments not made within thirty (30) days after receipt of written demand from the Buyer for payment may be satisfied by the Buyer pursuant to the terms of the Assets Stock Pledge Agreement attached hereto as Exhibit B. The Buyer hereby agrees that the Sellers shall be entitled to sell any portion of the Collateral in accordance with the Stock Pledge Agreement to satisfy any of the Assumed Liabilities and the principal amount of the Buyer Note shall be reduced by the numbers of shares sold by $4.00 per share regardless of the sales price of the Collateral sold in order to satisfy payments on or after the First Mortgage due and payable prior to the Closing Date, except real property taxes due and owing on the Property for the time period in which the Sellers' owned the Target Shares or the liabilities set forth on Exhibit C attached hereto. In addition, Sellers jointly and severally, hereby agree to pay all late fees and filing fees described in the Letter Agreement dated as of December 31, 1999 among Lahaina Acquisitions, Inc., Buyer and Beachside Holding, LLC. Any payments of any Income Taxes attributable such fees not made within one (1) business day after receipt by Lahaina Acquisitions, Inc. of written demand from the Buyer and/or NP Holding may be satisfied by Beachside Holding, LLC pursuant to the income terms of Seller;
the Stock Pledge Agreement attached hereto as Exhibit B. In addition, with respect to transfers of stock for the payment of such Assumed Liabilities, Sellers agree, jointly and severally, at their cost to use commercially reasonable efforts to cause legal counsel for Lahaina Acquisitions, Inc. to execute and deliver to Lahaina Acquisitions, Inc.'s transfer agent a written legal opinion confirming compliance with Rule 144 under the Securities Act of 1933, provided that such sale of stock complies with the requirements set forth in Rule 144, within two (g2) all liabilities business days after receipt by such counsel of an appropriate seller's representation letter and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessa broker's representation letter.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lahaina Acquisitions Inc)
Assumed Liabilities. On (a) Subject to the terms and provisions of this Agreement and upon satisfaction of the conditions set forth in Article VI, at the Closing DateSeller shall assign to Buyer, and Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume from Seller and agree to discharge when dueperform, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, (i) all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate towith respect to the Property from and after the Closing Date under the Personal Property Leases, or arise the Licenses, the Assumed Contracts, the Real Property Leases and the First Mortgage Loan (as amended as contemplated by virtue of Seller's or Buyer's ownership of this Agreement) to the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all extent such liabilities and obligations of Seller or Buyer arising first arise on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits or liability has been apportioned or pro-rated to Buyer in accordance with the express terms thereofhereof, (ii) the obligation to pay the principal amount owed under the First Mortgage Loan and (iii) subject to Section 1.8, the liabilities and obligations described in Section 1.4(e) (collectively, the “Assumed Liabilities”). In addition, Buyer shall, except as otherwise expressly set forth in this Agreement (i) acquire the Property subject to any recorded instrument burdening the Property constituting a Permitted Exception and (ii) assume and perform the costs and liabilities allocated to Buyer pursuant to Section 1.8.
(b) Except for the Assumed Liabilities (as they may be expanded pursuant to Section 1.7(c)) and other obligations of Seller to be performed by Buyer pursuant to paragraph (a) above, Buyer will not assume, and will not be deemed to have assumed, any liabilities of any nature of Seller whether disclosed or undisclosed, fixed or contingent, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller and its Affiliates for the Pre-Closing Period or Buyer arising on any Income Taxes of Seller and after its Affiliates resulting from the Closing Date under those Orders specifically relating to transactions contemplated by this Agreement (collectively, the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i“Excluded Liabilities”), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Assumed Liabilities. On the Closing DateAt Closing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to or under the extent included among following (the items causing an adjustment to “Assumed Liabilities”):
(a) the Base Purchase Price contemplated in Section 3.3Lease;
(b) all Contracts;
(c) all liabilities and obligations associated with warranty claims related to the Assets Beta-Port-P pressure modules sold by Seller on or the Business in respect of Taxes for which Buyer is liable pursuant prior to Section 3.4 or 6.10(a) hereofClosing;
(d) all liabilities and obligations warranty claims related to all products (other than the Beta-Port-P pressure module, for which Buyer assumes liability pursuant to Section 1.6(c) hereof) shipped by Seller on or prior to Closing, in an amount that shall not exceed three percent (3%) of Seller or the previous fiscal year’s gross sales revenue for all such products (the “Warranty Return Cost”). In the event that the costs incurred by Buyer under this Section 1.6(d) with respect to warranty claims during each twelve (12) month period commencing on the Transferred Employees incurred on or after date of Closing exceed the Closing Date Warranty Return Cost for which Buyer is responsible pursuant to Section 6.12;the preceding fiscal year, the amount of such excess may be offset against Buyer’s payment obligation under the Promissory Note, as hereinafter defined; and
(e) all liabilities, responsibilities and obligations owed by Seller to employees of Seller or who are hired by Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: for:
(i) costs of compliance (including capital, operating wages and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising benefits earned on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory ApprovalDate;
(hii) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required any severance pay resulting from the sale of the Assets to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to Buyer or owed as a result of the Business and outstanding on or arising termination of the employment of any such employee by Buyer after the Closing Date;
(iii) any earned and accrued vacation that has accrued through the Closing Date as set forth in Schedule 1.6(e) attached hereto; and
(iv) any accrued sick time or time off with pay set forth in Schedule 1.6(e). The obligations in clauses (i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related through (iv) under this Section 1.6(e) are hereinafter referred to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable as “Obligations Owed to the BusinessEmployees”.
Appears in 1 contract
Sources: Asset Purchase Agreement (Allied Motion Technologies Inc)
Assumed Liabilities. On Seller hereby assigns, and the Closing DatePurchaser assumes and accepts, Buyer or and shall thereafter be solely liable for and shall satisfy and discharge, all Liabilities of the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of extent relating to the Assumed Liabilities. All of Acquired Assets and to the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer extent arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on any Natroba Products manufactured or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, sold on or after the Closing Date, with respect to the ownership and whether accrued or unaccrued, fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date, other than the Retained Liabilities (all of the foregoing Liabilities being herein collectively called the “Assumed Liabilities”). Assumed Liabilities shall include the following:
(a) all Liabilities of the Seller under open orders for Natroba Products that have not yet been shipped at Closing (other than Liabilities for breaches by the Seller thereunder), as specifically set forth on Schedule 2.3(a);
(b) all Liabilities under the Assumed Contracts and the to the extent arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any the Acquired Assets prior to, on or after the Closing Date; Redacted name of agreement for competitive/confidentiality
(iiic) any Remediation (whether all Liabilities for the Seller’srecaosomnms. itments or not such Remediation commenced before undertakings for materials and services, including promotional materials and services, marketing expenses, disbursements, coupon redemptions, co-op fees, billbacks, temporary price reductions, off-invoice discounts, trade promotions and promotional allowances, to the extent related to the Natroba Products and made in the ordinary course of business prior to the Closing Date Date, but in all cases only to the extent related to any Natroba Products shipped on or commences after the Closing Date;
(d) all Liabilities associated with Returns of Environmental Conditions or Regulated Substances that are present or have been Released prior to, Natroba Products sold on or after the Closing Date, at, on, in, adjacent to or migrating from and in the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership case of any Assets or operation split lots of the Business; (v) Natroba Products, Liabilities associated with Returns shall be determined based on a percentage of any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset such lot sold on or after the Closing Date; ;
(vie) all Liabilities arising out of or relating to any bodily injurytort, loss of life, property damage, product liability or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, warranty claims involving or arising from any Natroba Products sold or gifted without charge by the arrangement for such activities, Purchaser on or after the Closing Date, which, in the case of Regulated Substances generated in connection with any split lots of Natroba Products, shall be determined based on the ownership percentage of any such lot sold on or after the Closing Date;
(f) all costs related to registration, maintenance, recording of change of ownership, renewal and prosecution of the Assets or the operation of the Business; and (vii) any Remediation Transferred Intellectual Property, including payment of any Environmental Condition associated fees therefor to the extent they become due or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, payable on or after the Closing Date, but only to the extent not related to or arising out of Regulated Substances generated in connection with the ownership any act, omission or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer event occurring prior to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations such Liabilities arising out of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to Medicaid Drug Rebate Program in connection with the Assets or the Business issued by or entered into with any Governmental Authority and listed Seller’s Natroba Products National Drug Codes (“NDC Codes”) as set forth in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory ApprovalAnnex A;
(h) customer advancesall Liabilities associated with the population pharmacokinetic (PK) analyses of Natroba Products, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on whether initiated before or arising after the Closing DateClosing; and
(i) actions all Liabilities, claims, causes of action or litigation involving the Acquired Assets or any Natroba Product, in all cases, based upon Natroba Products manufactured by or on behalf of the Purchaser and proceedings based on conductrelating to or arising out of acts, actions, circumstances omissions or conditions arising or events occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement
Assumed Liabilities. On In connection with Buyer’s purchase of the Closing DatePurchased Assets, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of at Closing the following liabilities indebtedness, commitments, liabilities, and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership and/or related to the Purchased Assets: (i) performance following the Closing of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, Lease (including, without limitation, the Assigned Agreements entered into by Seller (iobligations under Section 34.2 of such Real Property Lease and the use restrictions under Section 37.1 of the Real Property Lease) prior and the Assumed Contracts in each case arising in or related to periods after Closing but including any adjustment to the date hereof and (ii) after the date hereof consistent with Support Rent as defined thereunder for 2019 arising under the terms of this Agreement, except in each case the Real Property Lease as a result of any overpayment for 2018 (but excluding the $9,305.54 refund agreed to be paid by Seller to tenant under the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on Real Property Lease at or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated SubstancesClosing), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after payment following the Closing Date) arising from Environmental Conditions of the obligations of Seller in respect of property taxes and Utilities for the Owned Real Property, the Leased Real Property, personal property, but only to the extent related to periods after Closing or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after accounted for by the Closing Dateproration under Section 1.7; (iii) any Remediation (whether or not such Remediation commenced before performance following the Closing Date or commences of the obligations of Seller under the Provider Agreements with respect to obligations incurred with respect to any period after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the AssetsClosing; (iv) any violations or alleged violations of Environmental Laws occurring on or after performance following the Closing Date with respect of the obligations related to periods after Closing under the Permits and all other permits, approvals, licenses, qualifications, registrations, or certifications relating to the ownership of any Assets or operation of the BusinessPurchased Assets; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after payment following the Closing Dateof the applicable Hired Employees PTO Amount to the Hired Employees, subject to Section 10.10; (vi) any bodily injury, loss performance and payment of life, property damage, all obligations and liabilities arising or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated incurred in connection with the ownership respect of the Assets or Ancillary Agreements and the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projectsAssumed Affiliate Contracts, in each case directly arising in or related to periods after Closing; (vii) unless Buyer gives Notice to the Business and outstanding on or arising Seller at least 30 days prior to Closing that it will not require services after the Closing Date; and
under one or more of the Contracts listed on Schedule 1.4(vii) (i) actions the “Transition Agreements”), performance and proceedings based on conduct, actions, circumstances or conditions payment of all obligations and liabilities arising or occurring incurred under the Transition Agreements for the period from Closing to and through the date that ends with the expiration of the minimum notice period (set forth on Schedule 1.4(vii) opposite the applicable Transition Agreement) that New Operator will provide to Seller if New Operator no longer desires to receive services under the applicable Transition Agreement, provided that Buyer agrees to indemnify and hold Seller harmless (without regard to the limitations of Section 11.6) from any and all claims with respect to each Transition Agreement during the period after Closing that Buyer is receiving services thereunder and during any applicable notice period with respect thereto; and (viii) performance and payment of all obligations or after liabilities incurred in respect of periods of ownership or operations by Buyer of the Purchased Assets following the Closing Date, actions and proceedings described (amounts referred to in Schedule 2.3(ithis Section 1.4(a), actions and proceedings arising from or directly related to any other collectively, the “Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessLiabilities”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunlink Health Systems Inc)
Assumed Liabilities. On Except for the Closing Date, obligations and Liabilities specifically assumed by Buyer or the UniSource Designee acquiring relevant Designated Buyers in this Section 2.03, Buyer and the Designated Buyers shall not be deemed to have assumed or agreed to be responsible for any Seller’s, or any of its Affiliates’, Liabilities, whether or not arising out of the ownership and operation of the Purchased Assets shall deliver to Seller or the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with Purchased Business. Upon the respective terms and subject to the respective conditions thereofof this Agreement, all effective at the time of the Closing, Buyer shall, or shall cause the relevant Designated Buyers to, assume, become obligated for, and agree to pay and perform when due, only the following Liabilities of the Sellers (collectively, the “Assumed Liabilities. All of the following liabilities ”), and obligations of Seller or Buyer which relate tono other Liabilities, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred subject to collectively as the "Assumed Liabilities"Section 7.12:
(a) all liabilities and obligations Liabilities of Seller or Buyer the applicable Sellers arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, Assumed Leases and the Transferable Permits in accordance with Assumed Contracts, not including Cure Costs;
(b) all Liabilities of the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller Sellers arising out of or relating to (i) prior the Transferred Permits/Licenses, including such Liabilities thereunder arising out of or relating to all reclamation and post-mining Liabilities at the date hereof and Purchased Assets, (ii) after any mine operating or safety compliance matters related to the date hereof consistent condition of the Purchased Assets or the mining areas of the Purchased Business, (iii) the Purchased Assets’ or the Purchased Business’ compliance with Environmental Laws; and (iv) any conditions arising from a spill, emission, release or disposal into the terms environment of, or human exposure to, Hazardous Materials resulting from the operation of this Agreementthe Purchased Assets, except excluding, in each case of the preceding cases (i)-(iv), any monetary fines and penalties to the extent that such liabilities monetary fines and obligationspenalties arise from or relate to acts or omissions occurring on or before the Closing Date and can be Excluded Liabilities under Applicable Law, but including any monetary fines and penalties for which the Sellers or any of their Affiliates have received a breach written notice of violation or default by Seller, would have been paid, performed notice of claim (or otherwise discharged other notice of similar legal intent or meaning) from any Governmental Authority relating to a violation on or prior to the Closing Date (whether or not disclosed on Schedule 3.08(a) or Schedule 3.17) (such excluded fines and are not otherwise included among penalties, collectively, the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of “Excluded Pre-Closing Fines”) and any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Excluded Off-Site Environmental Liabilities;
(c) except as provided in Section 7.03, all liabilities and obligations associated Liabilities of any kind or character to the extent resulting from or arising out of or in connection with the Assets Buyer’s or the Business relevant Designated Buyer’s use, operation, possession or ownership of or interest in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofthe Purchased Assets and/or Purchased Business, in each case, following the Closing, including during the Interim Period;
(d) all liabilities and obligations of Seller or Buyer (i) with respect to any Transferred Employee (except as otherwise set forth in the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
following clause (e) iii)), any and all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or claims relating to Environmental Conditions employee health and safety, including claims for injury, sickness, disease or Regulated Substances (death, including common law liabilities relating any Workers’ Compensation Liabilities, to Environmental Conditions and Regulated Substances), whether such liability, responsibility the extent arising out of an event or obligation is known or unknown, contingent or accrued as of injurious exposure that occurs after the Closing Date, including but not limited to: (iii) costs with respect to any Transferred Employee represented by the United Mine Workers of compliance America (including capital“UMWA”), operating other than Black Lung Liabilities, any and other costs) all claims relating to any violation employee health and safety, including claims for injury, sickness, disease or alleged violation death, to the extent arising out of Environmental Laws occurring prior toan event or injurious exposure that occurs before, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; and (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date and all Black Lung Liabilities with respect to any Transferred Employee (including any Transferred Employee represented by the ownership UMWA) who is employed by the Buyer or the applicable Designated Buyer for a period of any Assets not less than one year (as defined in 20 CFR § 725.101(a)(32)) if the Buyer or operation of the Business; applicable Designated Buyer is otherwise liable to such Transferred Employee for such Black Lung Liabilities;
(ve) any bodily injury or loss of life all trade accounts payable arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated Petition Date in connection with the ownership of Purchased Business to the Assets or extent such trade payables are included in the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4Final Working Capital Adjustment;
(f) any Tax that may be imposed the Liabilities expressly assumed by any federal, state or local government on the ownership, sale (except as otherwise provided in Buyer pursuant to Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;9.02; and
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating Liabilities specified in Schedule 2.03(g) with respect to the Assets or the Business issued by or entered into with any Governmental Authority and listed Consent Decrees identified in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businesssuch Schedule.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alpha Natural Resources, Inc.)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets Purchaser shall deliver to Seller Sellers the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(ai) all liabilities and obligations of Asset Seller or Buyer arising on or after the Closing Date under the Assigned AgreementsPermits acquired by Purchaser hereunder, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations arising out of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions Purchaser’s ownership or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as operation of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, Acquired Assets on or after the Closing Date, (iii) all Employee Liabilities with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Dateemployees hired by Purchaser pursuant to Section 8.2(a) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, atbut only to the extent that such Employee Liabilities are based solely on actions or omissions occurring on or after the Closing Date, on, in, adjacent to or migrating from the Assets; (iv) any violations liabilities for Taxes relating to the Acquired Assets, the Assumed Liabilities, or alleged violations otherwise arising as a result of Environmental Laws occurring this Agreement and/or the consummation of the transactions contemplated hereby, but only to the extent that such Taxes are apportioned to Purchaser in accordance with Section 8.3, (v) all liabilities and obligations arising on or after the Closing Date with respect to the ownership of any Assets or operation of Assumed Benefit Plan, but only to the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for extent that such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities liabilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state based solely on actions or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or omissions occurring on or after the Closing Date, actions and proceedings described (vi) any liabilities assumed by Purchaser in Schedule 2.3(iaccordance with Section 3.1(b), actions and proceedings arising from (vii) all other liabilities and obligations of Asset Seller expressly assumed by Purchaser under this Agreement. All of the foregoing liabilities and obligations to be assumed by Purchaser hereunder (excluding any Excluded Liabilities) are referred to herein as the “Assumed Liabilities.” The assumption by Purchaser of the Assumed Liabilities shall in no way expand the rights or directly related to remedies of any other Assumed Liability, and generic third party against Purchaser or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable Asset Seller as compared to the Businessrights and remedies which such third party would have had against Asset Seller had Purchaser not assumed such Assumed Liabilities. Without limiting the foregoing, the assumption by Purchaser of the Assumed Liabilities shall not create any third party beneficiary rights.
Appears in 1 contract
Assumed Liabilities. On Buyer will not assume or be responsible for, and will in no event be liable for, any Liabilities of or relating to the Business, except that effective as of the Effective Time on the Closing Date, Buyer hereby assumes and agrees to pay, honor, discharge or perform, as appropriate, only the UniSource Designee acquiring following Liabilities relating to the Assets shall deliver to Seller (the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage Liabilities arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership use of the Assets or the operation of the Business; and (vii) any Remediation Business by Buyer in the Ordinary Course of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or Business after the Closing Date, but only to the extent that such Liabilities do not arise from or relate to any breach by Seller of Regulated Substances generated in connection with the ownership or operation any obligations, including under any provision of any of the Assets; providedAssumed Contracts, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities occurred on or obligations that are expressly excluded in Section 2.4before the Closing Date;
(fb) any Tax that may be imposed by any federal, state or local government on Liabilities arising under the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable Assumed Contracts but only to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
extent that such Liabilities (i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising arise on or after the Closing Date and (ii) do not arise from or relate to any breach by Seller of any obligations under any provision of any of the Assumed Contracts that occurred on or before the Closing Date;
(c) all warranty obligations arising in the Ordinary Course of Business relating to products of the Business which are applicable either (i) sold prior to the BusinessClosing Date and for which warranty claims are tendered on or following the second anniversary of the Closing Date or (ii) sold after the Closing Date (collectively, the “Assumed Warranty Obligations”); and
(d) those Liabilities of the Business that represent a prepayment by the customers of the Business for goods or services that have not been delivered by the Business as of the Closing Date and are set forth on Schedule 1.3(d) (the “Assumed Deferred Revenue”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Tactile Systems Technology Inc)
Assumed Liabilities. On At the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree to pay, discharge or perform, when due, without recourse to Seller, in accordance with the respective terms following and subject only the following Liabilities and Obligations of Sellers to the respective conditions thereofextent the same do not relate to the Detroit Business and Worthington Warehouse shall assume and agree to pay, all discharge or perform, when due, the following and only the following Liabilities and Obligations of Sellers to the extent the same relate to the Detroit Business (collectively, the “Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":”):
(a) all liabilities accounts payable of Sellers that relate to the Business and obligations remain unpaid as of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property LeasesTime, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller which are either (i) prior those accounts payable of the Sellers that relate to the date hereof Business which are included in the amount of the accounts payable reflected on the Balance Sheet and are unpaid as of the Closing Date; or (ii) those accounts payable of the Sellers which relate to the Business and have been incurred in the ordinary course of business after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerBalance Sheet Date;
(b) all liabilities and obligations of Seller for accounts payable Sellers to the customers of the Business arising under the terms of purchase orders that relate to the Business, that have been accepted by Sellers in the ordinary course of business consistent with past practices of the Business and that are outstanding as of the Closing Time; provided, however, that (i) Purchaser and Worthington Warehouse shall not and do not assume or agree to pay, discharge or perform any Liability or Obligation arising out of Sellers’ breach of or failure to perform any purchase order in accordance with its terms prior to the Closing, and (ii) to the extent that a Seller has prior to Closing received any payments from or invoiced any amounts to its customers in advance of the delivery of the products, goods or services of the Business to which such payments or invoices relate and the amount of such payments or invoices is not included among as a liability in the items causing an adjustment Estimated Working Capital, then (A) Sellers shall pay to Purchaser at the Base Purchase Price contemplated in Section 3.3Closing the aggregate amount of such payments received or to be received by Sellers or (B) Purchaser shall deduct such aggregate amount from the Closing Payment;
(c) all liabilities Liabilities and obligations associated with Obligations of Sellers arising after the Assets or the Business Closing in respect of Taxes for which Buyer is liable pursuant the Assumed Contracts; provided, however, that, Purchaser and Worthington Warehouse shall not, and do not, assume or agree to Section 3.4 pay, discharge or 6.10(a) hereofperform any Liability or Obligation arising under any Assumed Contract arising out of a Seller’s breach of or failure to perform any Assumed Contract in accordance with its terms prior to the Closing;
(d) all liabilities and direct obligations of Seller Sellers for replacement of or Buyer with respect to refund for damaged, defective or returned goods produced by the Transferred Employees incurred Business not in excess of the reserve therefor on or after the Final Closing Date for which Buyer is responsible pursuant to Section 6.12Statement;
(e) all liabilitiesLiabilities and Obligations of Sellers for payment of any termination of employment or severance benefits, responsibilities if any, of employees of GSSI (other than ▇▇▇▇ ▇▇▇▇▇▇▇ and obligations of Seller or Buyer arising under Environmental Laws or relating except as provided in Section 7.1(b) hereof) who are employed by GSSI at the Cleveland Facility to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substancesthe extent disclosed on SCHEDULE 7.1(a), whether such liabilityincluding, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs , all Liabilities and Obligations of compliance (including capitalSellers, operating and other costs) relating if any, to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; such employees (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; other than ▇▇▇▇ ▇▇▇▇▇▇▇ and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded employees identified in Section 2.47.1(b) hereof) under the WARN Act;
(f) all Liabilities and Obligations of Sellers for payment of any Tax that may be imposed by any federaltermination of employment or severance benefits, state or local government if any, to employees of GSCNY employed at the Detroit Facility to the extent disclosed on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)SCHEDULE 7.1(a), operation of including, but not limited to, all Liabilities and Obligations, if any, to such employees under the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of SellerWARN Act;
(g) all liabilities Liabilities and obligations Obligations of Seller or Buyer arising on GSSI, if any, for accrued and after the Closing Date under those Orders specifically relating unpaid real estate taxes payable with respect to the Assets or Cleveland Facility to the Business issued by or entered into with extent reserved on the Final Closing Statement (excluding any Governmental Authority reserve for deferred Taxes established to reflect timing differences between book and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory ApprovalTax income);
(h) customer advancesall Liabilities and Obligations of GSCNY, customer deposits if any, for accrued and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related unpaid real estate taxes payable with respect to the Detroit Facility in respect of any Tax attributable to the period after the Closing Date, to the extent reserved on the Final Closing Statement (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income);
(i) all Liabilities and Obligations of Sellers, if any, for accrued and unpaid sales and use Taxes payable in connection with the operation of the Business to the extent reserved on the Final Closing Statement (excluding any reserve for deferred Taxes established to reflect timing differences between book and outstanding on or Tax income); and
(j) all Liabilities and Obligations of Sellers, if any, arising as a result of the termination of any Assumed Contracts after the Closing Date; and
(i) actions provided, however, that Purchaser and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed LiabilityWorthington Warehouse shall not, and generic do not, agree to pay, discharge or industry-wide actions and proceedings outstanding on perform any Liability or Obligation arising on or as a result of the termination of any Assumed Contract after the Closing Date that are applicable as a result of a Seller’s breach of or failure to perform such Assumed Contract in accordance with its terms prior to the BusinessClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gibraltar Industries, Inc.)
Assumed Liabilities. On Upon the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofof this Agreement, Buyer agrees, effective at the time of the Closing (or the Assumption and Assignment Effective Date, as applicable), to assume and pay, perform and discharge, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller the Sellers (the “Assumed Liabilities”):
(a) liabilities and obligations of Sellers arising after the Assumption and Assignment Effective Date relating to or Buyer which relate toarising out of the Assumed Contracts or Assumed Real Property Leases (including but not limited to all liabilities and obligations pursuant to the JVA and the JV Agreements (as such terms are defined in the Consent and Settlement Agreement dated July 31, 2017 (the “Consent”))), but excluding, for the avoidance of doubt, any and all liabilities or obligations under any Assumed Contracts or Assumed Real Property Lease of any nature, whether known or unknown, whether due or to become due, whether accrued, absolute, contingent or otherwise, whether or not existing on the Assumption and Assignment Effective Date, arising out of any transactions entered into or any state of facts existing, or arise by virtue of Seller's or Buyer's ownership of the Assets use, ownership, possession or operation of the Purchased Assets or the conduct of the Seller’s portion of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof Assumption and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerAssignment Effective Date;
(b) all liabilities and obligations arising after the Closing Date relating to or arising out of Seller the Purchased Assets, but excluding, for accounts payable the avoidance of doubt, but subject to sub-section (c) below, any and all liabilities or obligations of any nature, whether known or unknown, whether due or to become due, whether accrued, absolute, contingent or otherwise, whether or not existing on the Closing Date, arising out of any transactions entered into or any state of facts existing, or the use, ownership, possession or operation of the Purchased Assets or the conduct of the Seller’s portion of the Business prior to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Closing Date;
(c) all liabilities Apportioned Tax Obligations and obligations associated with the Assets or the Business in respect of Transfer Taxes for which allocated to Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;under Article 8; and
(d) all liabilities and obligations of Parent Seller or Buyer with regard to Parent Seller’s guarantees of indebtedness of Solazyme Bunge, as set forth in Section 2.03(d) of the Seller Disclosure Schedule; provided that it is understood and agreed that Buyer’s obligation with respect to such guarantees shall be to enter into replacement guarantees on terms no more onerous than the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as terms of the Closing Date, including but existing Parent Seller guarantees and in an amount not limited to: (i) costs to exceed the amount of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing guaranteed obligations as set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f2.03(d) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessDisclosure Schedule.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (TerraVia Holdings, Inc.)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller Sellers the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Sellers, all of the following liabilities and obligations of Seller, direct or indirect, known or unknown, absolute or contingent, which relate to the Purchased Assets, other than Excluded Liabilities, in accordance with the respective terms and subject to the respective conditions thereofthereof (collectively, all of the "Assumed Liabilities. "):
(a) All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities Sellers and obligations of Seller or Buyer GPU arising on or after the Closing Date under Sellers' Agreements, the Assigned Operating Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, (i) the Assigned Agreements contracts, licenses, agreements and personal property leases entered into by Seller (i) prior Sellers with respect to the date hereof Purchased Assets, which are disclosed on Schedule 4.12(a) or not required by Section 4.12(a) to be so disclosed, and (ii) the contracts, licenses, agreements and personal property leases entered into by Sellers with respect to the Purchased Assets after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by SellerSellers, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerSellers;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all All liabilities and obligations associated with the Purchased Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 Sections 3.5 or 6.10(a6.8(a) hereof;
(dc) all All liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred arising on or after the Closing Date (i) for which Buyer is responsible pursuant to Section 6.126.10 or (ii) relating to the grievances and arbitration proceedings arising out of or under the Collective Bargaining Agreement prior to, on or after the Closing Date;
(ed) all liabilitiesAny liability, responsibilities and obligations of Seller obligation or Buyer arising responsibility under or related to Environmental Laws or relating to Environmental Conditions or Regulated Substances (including the common law liabilities relating to Environmental Conditions and Regulated Substances)law, whether such liability, responsibility liability or obligation or responsibility is known or unknown, contingent or accrued accrued, arising as a result of the Closing Date, including but not limited to: or in connection with (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring Laws, whether prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of any of the BusinessPurchased Assets; (ii) loss of life, injury to persons or property or damage or to natural resource damage resources (whether or not such damages were manifested loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) arising from Environmental Conditions caused (or Releases allegedly caused) by the presence or Release of Regulated Hazardous Substances at, on, in, under, adjacent to, to or migrating from any the Purchased Assets prior to, on or after the Closing Date, including, but not limited to, Hazardous Substances contained in building materials at or adjacent to the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or near the Purchased Assets; and (iii) any the Remediation (whether or not such Remediation commenced before the Closing Date or commences on or after the Closing Date) of Environmental Conditions or Regulated Hazardous Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after from, the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Purchased Assets or in the operation of soil, surface water, sediments, groundwater, landfill cells or in other environmental media at or adjacent to the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Purchased Assets; provided, that nothing set forth in this Section 2.3 subsection 2.3(d) shall require Buyer to assume any liabilities, responsibilities liabilities or obligations that are expressly excluded in Section 2.4;2.4 including, without limitation, liability for toxic torts as set forth in Section 2.4(i).
(e) All liabilities and obligations of Sellers with respect to the Purchased Assets under the agreements or consent orders set forth on Schedule 4.7 arising on or after the Closing; and
(f) With respect to the Purchased Assets, any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a))sale, operation of the Business or use of the Purchased Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued received by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessSellers.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Electric Co)
Assumed Liabilities. On Notwithstanding anything else contained in this Agreement to the Closing Datecontrary, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee Purchaser shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following those liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising the Sellers which are specifically identified on or after Schedule 2.3 attached hereto. The Assumed Liabilities shall be "Permitted Encumbrances" on the Closing Date under Acquired Assets. Except for the Assigned AgreementsAssumed Liabilities, the Real Property LeasesPurchaser has not agreed to pay, shall not be required to assume and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach shall have no liability or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer obligation with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilitiesany debt, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liabilityobligation, responsibility or obligation is liability of the Business, the Sellers, any Affiliate or successor of the Sellers, or any claim against any of the foregoing, whether known or unknown, contingent or accrued as absolute, or otherwise (the "Excluded Liabilities"). Each Seller agrees to take all actions and do all things reasonably necessary to ensure that the Purchaser is not liable for any Excluded Liabilities. Without limiting the generality of the foregoing, except for the Assumed Liabilities, Purchaser shall not assume or become liable to pay, perform or discharge:
(a) Any and all liabilities and obligations of the Sellers, whether or not reflected on the books and records of the Sellers on the Closing Date, including but not limited to: under any contract, lease, debt, note, negotiable instrument or other written commitment;
(ib) costs Any liability or reimbursement obligation to Medicaid, Medicare or any other third party payor arising out of compliance or relating to the operation of the Business for periods prior to the Effective Date;
(c) Any and all liabilities or obligations of the Sellers for personal injury (including capitalsickness, operating trauma, disease, pain and suffering, loss of future earnings, death, punitive damages and the like), property damage, and other costsdamage and injury claims arising out of the Sellers' (or any predecessor's) relating conduct of the Business prior to the Effective Date, whether or not any claim or litigation has been instituted with respect thereto and whether or not any claim is covered, partially or fully, by insurance;
(d) Any liabilities related to any violation former or alleged violation current employee or agent of Environmental Laws occurring the Sellers, including any liabilities under or associated with any employee benefit plan, any actions asserted by or on behalf of any former or current employee or agent of the Sellers, any claims for wages, bonuses, commissions or other forms of compensation, and any claims under any insurance policies of the Sellers related to their respective employees engaged in the day-to-day operation of the Business prior toto th Effective Date;
(e) Any federal, on state or after the Closing Date, local income or other Tax payable with respect to the ownership Business, Acquired Assets, properties or operations of the Assets Sellers or operation any of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from their respective Affiliates for any Assets period prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Effective Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) Any liabilities or obligations arising out of any Tax that may be breach by the Sellers of any of the contracts, agreements or documents entered into in connection with the Assumed Liabilities, including, but not limited to liabilities or obligations arising out of penalties, late charges or the Sellers' failure to perform any such Assumed Liability prior to the Effective Date;
(g) Any obligation or liability of the Sellers under any benefit plan, including without limitation, any profit sharing plan or any pension plan;
(h) Any obligation or liability by or on behalf of the Sellers for any finder's, broker's or advisor's fee and expenses or the like incurred in connection with the transactions contemplated by this Agreement;
(i) Any obligation or liability of the Sellers arising under this Agreement or the transactions contemplated hereby;
(j) Any obligations or liability arising as a result of the failure or alleged failure of the Sellers to comply with any applicable local, state or federal law, ordinance, regulation, order or decree including, without limitation, any claim, obligation, liability, loss, damage or expense, of whatever kind or nature, contingent or otherwise, incurred or imposed by or based upon any provision of federal, state or local government on the law or regulations or common law, pertaining to health, safety or environmental protection and arising out of any act or omission of a Seller, its employees, agents or representatives, or arising out of a Seller's ownership, sale use, control or operation of any facility, site, area or property from which any substance was released into the environment (except as otherwise provided in Section 3.4 the term "release" meaning any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or 6.10(adisposing into the environment, and the term "environment" meaning any surface or ground water, drinking water supply, land, surface or subsurface strata, or the ambient air)); and
(k) Any liabilities, damages, costs, expenses and fees arising out of any lawsuit or proceeding related to the Business or Acquired Assets and based on claims or causes of action arising prior to the Effective Date; or
(l) Any liabilities for payment of all accounts payable accrued, outstanding, or resulting from, the operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable prior to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Effective Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Interwest Home Medical Inc)
Assumed Liabilities. On As further consideration for consummation of the Closing Datetransactions contemplated hereby, subject to SECTION 2.4 hereof, at the Closing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to thereafter pay when due and discharge when due, without recourse and indemnify Seller and hold Seller harmless with respect to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed LiabilitiesASSUMED LIABILITIES":):
(a) all All obligations and liabilities and obligations of Seller or under the Contracts that are not in default as of the Closing and that are effectively assigned to Buyer at the Closing pursuant to the provisions of this Agreement (the "ASSUMED CONTRACTS");
(b) All accounts payable owed by Seller to the extent arising prior to the Closing out of the conduct of the Division Business by Seller (the "ACCOUNTS PAYABLE");
(c) All obligations and liabilities in respect of contractual warranties for any and all products (other than EIFS) sold by the Division at any time, including obligations and liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and contractual warranty of merchantability and other contractual warranty claims;
(d) Except as set forth in Section 6.14, all obligations and liabilities (other than contractual warranty claims) in respect of product liability claims for any and all products (other than EIFS) sold by the Division at any time, including obligations and liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty of merchantability and other claims; provided, that the date of such claim (as determined in a manner consistent with the determination of the date of claim under a "claims made" insurance policy) was on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12Date;
(e) all liabilities, responsibilities All obligations and obligations liabilities in respect of Seller or Buyer arising under Environmental Laws or relating claims of defective EIFS sold by the Division at any time and with respect to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of which the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, customer commences installation on or after the Closing Date, including obligations and liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty of merchantability and other claims relating thereto;
(f) All obligations and liabilities arising under or in connection with (1) accrued payroll and accrued vacation with respect to all Transferred Employees, (2) accrued severance benefits and accrued benefits under the ownership of Simplex Products Division UAW ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇ Retirement Income Plan (the Assets or operation of "SIMPLEX PLAN") and the BusinessPaper Industry Union Management Pension Fund (the "PAPER INDUSTRY PLAN"); (ii3) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases severance of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or Transferred Employee who terminates employment with Buyer after the Closing Date; and (iii4) post-retirement medical benefits (on substantially the same terms offered to other similarly situated employees of Buyer pursuant to Buyer's medical benefit plans or pursuant to the terms of any Remediation (whether or not such Remediation commenced before applicable Collective Bargaining Agreement) for any Transferred Employee who retires from the Closing Date or commences Buyer after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(fg) any Tax that may be imposed by any federalSubject to Section 9.9 and other applicable provisions hereof, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or all Environmental Liabilities arising after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed as set forth in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;SECTION 2.4(k); and
(h) customer advancesAll other liabilities, customer deposits and construction advancescontingent or otherwise, unperformed service obligationsowed by Seller, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or extent arising after prior to the Closing Date; and
out of the conduct of the Division Business by Seller AND to the extent that they are either (i1) actions and proceedings based identified on conduct, actions, circumstances SECTION 2.3(h) of the Disclosure Schedule or conditions arising or occurring on or after (2) included as liabilities in the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the statement of Closing Date that are applicable Net Assets and included in the calculation of the Cash Portion of the Purchase Price pursuant to the BusinessSECTION 2.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (K2 Inc)
Assumed Liabilities. On As of the Closing Date, the Buyer or shall assume, and shall thereafter pay and perform, the UniSource Designee acquiring following obligations and liabilities of the Assets shall deliver Seller existing as of end of business on the Closing Date and none other (collectively the "Assumed Liabilities"):
(i) Seller's obligations under the agreements with Saurer Textiles Systems Charlotte dated May 14, 1998, promissory note to Saurer Textile Systems Charlotte dated May 14, 1998 and agreement with ▇▇▇▇▇▇▇ Schweitor Muttler Corp. dated May 19, 1998 (the payments under such obligations having an initial aggregate principal amount of $6,361,100) (the "Twister Notes"), but only to the extent such obligations are not past due as of the Closing Date.
(ii) (A) the obligations of the Seller under the Assignment Assumed Contracts to the extent such obligations are obligations other than payment obligations, but only to the extent such obligations arise after the Closing and Assumption Agreement pursuant (B) the payment obligations of the Seller under the Assumed Contracts to which the extent such payment obligations accrue for periods after the Closing; provided that (A) Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, 's payment obligations under the purchase Contracts contained in accordance with the respective terms and subject Assumed Contracts only to the respective conditions thereof, all extent the goods purchased under such Contracts have not been received by Seller as of 7:00 a.m. on the Closing Date; (B) Buyer shall assume Seller's obligations under the sales contracts contained in the Assumed Liabilities. All Contracts only to the extent the relevant goods have not been shipped or billed by Seller under such Contracts as of 7:00 a.m. on the following liabilities Closing Date and obligations of Seller or (C) Buyer which relate to, or arise by virtue shall not assume any of Seller's obligations under any purchase contract where the goods purchased have been received by Seller as of 7:00 a.m. on the Closing Date and Buyer shall not assume any of Seller's obligations (including any warranty obligations) under any sales contract where the relevant goods sold have been shipped or billed by Seller as of 7:00 a.m. on the Closing Date and, notwithstanding anything to the contrary set forth in Section 2.1(a)(v) to the contrary, the Contracts described in this Subsection 2.1(c)(ii)(C) shall not be Assumed Contracts. but excluding in each of the cases (i) and (ii) set forth above any liabilities or alleged liabilities of the Seller (A) relating to any Taxes or Income Taxes arising from the operations of the Business prior to the Closing; (B) relating to any breach or alleged breach of contract, default, breach or alleged breach of warranty (including without limitation any warranty claims with respect to products manufactured or sold by the Seller prior to the Closing Date), tort, derelict, infringement, or violation or alleged violation of law by the Seller, including violations of ERISA or any other law applicable to any employee benefit plan of the Seller, including the Plans; (C) payable to any Affiliate of the Seller, except for yarn orders from Seller's Candlewick Division approved by Buyer; (D) arising from or relating to the termination of, or any employment-related claim asserted by, any employee of the Seller, including without limitation claims for wrongful or illegal termination, severance pay, accrued vacation or sick days or other employment related claims, together with all costs or liabilities associated with any such employees except to the extent such liabilities are Buyer's ownership WARN Liabilities (as defined in Section 5.7); (E) arising under or related to any of the Assets Plans; and (F) other than the Twister Notes, arising under any Indebtedness, including Indebtedness for money borrowed or operation from the funding, financing or factoring of the accounts receivable of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case Indebtedness directly related to the Business Purchased Assets and outstanding on or arising after assumed pursuant to Section 2.1(c)(i) and (ii)) (the Closing Date; and
(i) actions and proceedings based on conduct"Excluded Liabilities"). The foregoing, actionsnotwithstanding, circumstances or conditions arising or occurring on or after all liability of the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable parties under all Environmental Laws relating to the Business.Real Property and all other environmental matters relating to the Real Property are addressed in Article VII..
Appears in 1 contract
Assumed Liabilities. On Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, Buyer shall at the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to pay, perform and discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, due all of the Assumed Liabilities. All of the following liabilities and obligations of Seller arising out of or Buyer which relate torelating to the Acquired Assets on or after the Effective Time set forth below and no other liabilities or obligations (collectively, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerContracts;
(b) all liabilities and obligations of Seller for accounts payable Taxes relating to the extent included among Acquired Assets or the items causing an adjustment Assumed Liabilities for any taxable period beginning on or after the Effective Time and, with respect to any taxable period beginning before and ending after the Base Purchase Price contemplated in Section 3.3Effective Time (the “Straddle Period”), the portion of such Straddle Period that occurs on or after the Effective Time;
(c) all liabilities and obligations associated with for ad valorem Taxes levied on the Acquired Assets or for the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofStraddle Period;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Transfer Taxes, as set forth in Section 6.127.02(a);
(e) all liabilities, responsibilities liabilities pursuant to Section 6.08 hereof;
(f) all liabilities and obligations assumed by Buyer in this Agreement and not otherwise listed in this Section 2.03;
(g) all liabilities pursuant to Section 3.08(c) hereof; and
(h) all other liabilities and obligations arising out of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the Buyer's ownership of the Acquired Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Acquired Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) including all liabilities and obligations under the Assigned Contracts, arising out of Seller any event, condition, circumstance, act or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or omission occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement
Assumed Liabilities. On the Closing DateBuyer shall be responsible for, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume ------------------- and agree agrees to discharge when duepay or discharge, without recourse to Seller, in accordance with all Liabilities of the respective terms and subject Purchased Business or that relate to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Purchased Assets or operation of the Business (other than the Excluded Liabilities) are referred to collectively as Liabilities (the "Assumed Liabilities"), including but not limited to the following:
(a) any and all liabilities and obligations Liability arising out of Seller any event that occurs, products which are sold, or services which are performed by Buyer arising on or after the Closing Date under Date, or arising out of Buyer's operation of the Assigned Agreements, Purchased Business on or after the Real Property Leases, Closing Date;
(b) any and the Transferable Permits in accordance with the terms thereofall product warranty Liability, including, without limitation, the Assigned Agreements entered into cost of services and materials of Buyer's responding to and providing service or materials to any purchaser of a product manufactured by Seller (i) prior to the date hereof which product is covered by valid and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default unexpired warranty given by Seller, would have been paidor imposed by law, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 Date, or to the extent the same arise out of any such breach given by Buyer, or default or out of any event which imposed by law, after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3Closing Date;
(c) any and all liabilities and obligations associated with the Assets or the Business in respect Liabilities of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereofSeller arising under acquired Contracts;
(d) any and all liabilities and obligations Liabilities of Seller or Buyer in connection with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12acquired Equipment;
(e) any and all liabilities, responsibilities accounts payable and obligations trade payables of Seller that relate to the Purchased Business;
(f) any and all Liabilities for sales or Buyer excise Taxes arising under Environmental Laws or out of the subject sale of the Purchased Assets; and
(g) any and all Liabilities relating to Environmental Conditions or Regulated Substances the Proprietary Rights;
(including common law liabilities relating h) any and all Liabilities to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as employees of Seller continuing in the employ of Buyer following the Closing Date, including but not limited to: to any liability for wages, salary, bonuses, vacation pay, sick leave pay or any other pay for time not worked, back pay and damages payable under make whole remedies pursuant to Applicable Law governing employment practices, whether such Liabilities arose prior to or subsequent to the Closing Date;
(i) costs any and all Liabilities of compliance (including capital, operating and other costs) relating Seller arising under or related to any violation or alleged violation each of Environmental Laws occurring prior tothe employment agreements between Seller, on or after the Closing Dateone hand, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances atand ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, on, in, under, adjacent to, or migrating from any Assets prior torespectively, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4other hand;
(fj) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation and all Liabilities arising out of the Business or use performance of the Assets on or after conditions attached the Closing Datemunicipal business development grant in the amount of Forty-five Thousand Dollars ($45,000) from the City of Cedar Falls, except for any Income Taxes attributable to the income of SellerIowa;
(gk) any and all liabilities and obligations of Seller or Buyer Liability for Taxes arising on and after the Closing Date under those Orders specifically relating prior to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advancesDecember 18, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date1998; and
(il) actions any and proceedings based on conduct, actions, circumstances all other Liabilities of the Purchased Business or conditions arising or occurring on or after that relate to the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date Purchased Assets that are applicable to the Businessnot expressly excluded under Section 2.6 below.
Appears in 1 contract
Assumed Liabilities. On the Closing Date, but effective as of the Effective Time, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following liabilities and obligations Liabilities of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business Sellers (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(ai) all liabilities any Liability related to or arising from the ownership or use of the Transferred Assets from and obligations after the Effective time;
(ii) any Liability of Seller Sellers or Buyer arising on or after the Closing Date Effective Time under any Assumed Contract;
(iii) any Liability arising out of or relating to products of the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case Optoelectronics Business to the extent such liabilities and obligationsmanufactured or sold by Buyer or any of its subsidiaries, but for a breach affiliates, successors or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which assigns after the giving Effective Time, or sold by Sellers or any of notice their subsidiaries, affiliates, successors or passage of time or both would constitute a default by Sellerassigns beginning on and from August 29, 2003;
(biv) all liabilities and obligations any Environmental Claims or permitting requirements arising out of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as the operation of the Closing DateOptoelectronics Business by Buyer, including but not limited to: (i) costs its subsidiaries, affiliates, successors or assigns after the Effective Time, or to Buyer's ownership, occupation or use of compliance (including capitalor operations at the Telstar Facility, operating or the occupation or use of or operations at the Telstar Facility by Buyer's subsidiaries, affiliates, successors or assigns from and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect or Buyer's leasing of or operations at the Monterey Park Facility or Tongmei Facility; provided, however, that Buyer shall not be liable to Sellers or any Seller Indemnified Person for Environmental Costs for any Environmental Claim relating to conditions existing prior to the ownership of Effective Time at the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances atMonterey Park Facility, on, in, under, adjacent toTongmei Facility, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; Telstar Facility;
(v) any bodily injury or loss Liability for Taxes arising as a result of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership Buyer's operation of the Assets Optoelectronics Business, or the operation of the Business; and (vii) any Remediation of any Environmental Condition Optoelectronics Business by Buyer's subsidiaries, affiliates, successors or Release of Regulated Substances arising from the storageassigns or ownership, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership use or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Transferred Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing DateEffective Time; and
(ivi) actions all obligations of Buyer under this Agreement, the ▇▇▇▇ of Sale, the Assignment and proceedings based on conductAssumption Agreement, actionsthe Patent Assignment Agreement, circumstances or conditions arising or occurring on or after the Closing DateGrant Deed, actions the Monterey Park Lease, the Tongmei Lease, the Trademark License Agreement, the Escrow Agreement, the MOCVD Equipment Lease and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessChina Equipment Lease.
Appears in 1 contract
Sources: Asset Purchase Agreement (Axt Inc)
Assumed Liabilities. On (a) Buyer shall assume as of the Closing DateDate and shall pay, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment perform and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Sellerand shall indemnify Seller and its Affiliates against and hold them harmless from, in accordance with all obligations and liabilities of whatever kind and nature, primary or secondary, direct or indirect, absolute or contingent, known or unknown, of the respective terms and subject Seller arising out of or attributable to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business Property (other than Excluded Liabilitiesincluding the use or operation of each Hotel) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under (the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof"Assumed Liabilities"), including, without limitation, the Assigned Agreements entered into by Seller following:
(i) all obligations and liabilities of the Seller under the Assumed Contracts that have not accrued prior to the date hereof and Closing Date;
(ii) after the date hereof consistent all liabilities to customers with the terms of this Agreement, except in each case respect to the extent all unrefunded cash deposits paid by such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or customers to Seller prior to the Closing Date and are not otherwise included among the items causing an adjustment paid by Seller to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) 11.01 hereof;.
(diii) all liabilities claims, obligations and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility the use or obligation is known or unknown, contingent or accrued as operation of the Closing Date, including but not limited to: (i) costs Hotels or arising out of compliance (including capital, operating and other costs) relating to Property at any violation or alleged violation of Environmental Laws occurring prior to, time on or after the Closing Date;
(iv) all obligations and liabilities with respect to Taxes relating to the Property with respect to any period that is not a Pre-Closing Tax Period; provided, however, that the Buyer will not assume liability for any Taxes relating to the Property with respect to any Pre-Closing Tax Period except as set forth in Section 11.01 of this Contract. A "Pre-Closing Tax Period" shall mean all taxable periods ending on or before the Closing Date and the portion ending on the Closing Date of any taxable period that includes (but does not end on) such day. In the case of any taxable period that includes (but does not end on) the Closing Date (a "Straddle Period"): (i) real, personal and intangible property Taxes ("Property Taxes") relating to the Property with respect to the ownership Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the Assets or operation entire Straddle Period multiplied by a fraction, the numerator of which is the Business; number of days in the Pre-Closing Tax Period and the denominator of which is the number of days in the applicable Straddle Period and (ii) property damage or natural resource damage Taxes (whether such damages were manifested before or after other than Property Taxes) relating to the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date Property with respect to the ownership of any Assets or operation Pre- Closing Tax Period shall be computed as if such taxable period ended as of the Business; (v) any bodily injury or loss close of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset business on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Contract for Purchase and Sale of Hotels (Itt Corp /Nv/)
Assumed Liabilities. On As partial consideration for consummation of the Closing Datetransactions contemplated hereby, at the Closing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree thereafter to discharge perform when duedue and discharge, without recourse the following debts, obligations and liabilities of Seller relating to Sellerthe Business or the Assets and any obligations and liabilities of CJCNA under the ABC Contract, in accordance with the respective terms and subject to the respective conditions thereofeach case whether known, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate tounknown, fixed, contingent, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business otherwise (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(a) all liabilities and the obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreementsto honor cash discounts, the Real Property Leases, dating terms and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case prepaid orders to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to reflected in the accounts receivable of the Business outstanding as of the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerDate;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all those liabilities, responsibilities obligations, costs and obligations expenses arising out of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions the operation or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition Business by Buyer or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or its assignees after the Closing DateDate or which relate to or arise out of the performance by Buyer or its assignees of the Contracts, Leases and Permits (other than Excluded Assets) after the Closing Date to the extent that such Contracts, Leases and Permits are assigned to Buyer hereunder in compliance with any required consents of Regulated Substances generated other parties or consents or approvals of governmental authorities, or to the extent that Buyer is otherwise obtaining equivalent benefits thereunder, those liabilities, obligations, costs or expenses specifically related to the benefits received by Buyer but only to the extent not otherwise incurred or required to be paid by Buyer;
(c) the accounts payable and all other liabilities of Seller included in connection with the determination of Adjusted Working Capital pursuant to Section 1.5;
(d) the obligations of Seller incurred in the ordinary course of business as a bailee to hold, store or retain finished goods located at any facility of the Business for customers who have previously purchased such goods;
(e) the liabilities and obligations of Seller, if any, relating to Seller's employees, to be assumed by Buyer as provided in Article VI; and
(f) all obligations and responsibilities of Seller for all production warranties, repairs and customer returns related to the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities Assets or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or prior to and after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Commemorative Brands Inc)
Assumed Liabilities. On Buyer shall, on and as of the Closing Date, Buyer accept and assume, and shall become and be fully liable and responsible for, and other than as expressly set forth herein Seller shall have no further liability or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer responsibility for or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following respect to: (i) liabilities and obligations arising out of Seller or Buyer which relate to, or arise by virtue of Seller's or events occurring on and after the Closing Date related to Buyer's ownership of the Assets or and Buyer's operation of the Business after the Closing Date; (ii) accounts payable, advance payments by Subscribers, accrued expenses, all deferred revenues and any other than Excluded Liabilitiescurrent liability of Seller as of the Closing Date (except the current portion of any bank debt or line of credit to be paid pursuant to Section 1.5 and except Notes Payable of Seller, as set forth on Schedule 1.3(a) are referred fees for professional services rendered to collectively Seller prior to and as of the Closing Date by the law firm of Long, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.A. and by ▇▇▇▇▇, ▇▇▇▇▇▇▇ CPA Group, P.A. included on Seller's balance sheet, as determined in accordance with GAAP consistently applied (the "Assumed Current Liabilities":
); and (aiii) all obligations and liabilities and obligations of Seller or Buyer arising on or which are to be performed after the Closing Date arising under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereofContracts, including, without limitation, the Assigned Agreements entered into Seller's obligations to Subscribers (as defined in Section 2.16) under such Contracts for (A) Subscriber deposits held by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms as of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among in the items causing an adjustment amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by Seller as of the Base Purchase Price contemplated Closing Date for services to be rendered in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated connection with the Assets or the Business in respect of Taxes the amount for which Buyer is liable receives a credit pursuant to Section 3.4 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or 6.10(aotherwise) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substancesi), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; and (iii) any Remediation (whether or not such Remediation commenced before together, the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation "Assumed Liabilities"). The assumption of the Business; (v) Assumed Liabilities by Buyer hereunder shall not enlarge any bodily injury rights of third parties under contracts or loss of life arising from Environmental Conditions arrangements with Buyer or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer arising on and after the Closing Date Seller shall have any rights under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessthis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Duro Communications Corp)
Assumed Liabilities. On the Closing DateAs of Closing, Buyer or agrees to assume ------------------- only the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment future payment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All performance of the following liabilities and obligations of Seller or Buyer which relate to(collectively, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller Seller: (i) prior to obligations arising from and after Closing under the date hereof and Contracts; (ii) after the date hereof consistent with the terms of this Agreement, except in each case other obligations and/or expenses to the extent such liabilities and obligations, but for a breach assumed or default required to be paid or borne by Seller, would have been paid, performed Buyer under other provisions of this Agreement or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant related to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or periods after the Closing Date; (iii) any Remediation the aggregate current liabilities, if any, assigned to Buyer by Seller and included in the computation of Adjusted Working Capital; and (whether or not such Remediation commenced before iv) Seller's obligations as of the Closing Date or commences after in respect of accrued vacation pay, sick leave and holiday pay of Seller's employees at the Hospital who are hired by Buyer as of the Closing DateDate and any FICA, FUTA, workers' compensation and any and all other taxes or amounts due and payable as a result of the exercise by any of Seller's employees of such employees' right to vacation, sick leave and holiday benefits accrued while in the employ of Seller, but only to the extent such accrued vacation pay, sick leave and holiday pay and FICA, FUTA, workers' compensation and any and all other taxes or amounts due and payable in connection therewith are set forth in Schedule 1.5 delivered by Seller to Buyer at least three (3) business days prior to the Closing Date and as adjusted subsequent thereto pursuant to Section 1.8(e) hereof (the "Accrued PTO"). Buyer shall not be liable for (i) any claims arising from Seller's assignment and Buyer's assumption of Environmental Conditions or Regulated Substances the Assumed Liabilities; (ii) uncured defaults in performance of the Assumed Liabilities for periods prior to Closing; (iii) unpaid amounts in respect of the Assumed Liabilities that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assetsdue as of Closing; and/or (iv) rights or remedies claimed by third parties under any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury Assumed Liabilities which broaden or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after vary the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from rights and remedies such third parties would have had against Seller if the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership sale and purchase of the Seller Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer were not to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessoccur.
Appears in 1 contract
Sources: Asset Purchase Agreement (Health Management Associates Inc)
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the (a) The Assets shall deliver specifically not include, and Buyer does not agree to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when dueaccept, without recourse to any liabilities of Seller, in accordance with the respective terms and subject whether related to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Seller’s Retail Business (or otherwise, other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and Seller’s obligations of Seller or Buyer first arising on or after the Closing Date (as hereinafter defined) under the Assigned Agreements, leases for the Real Property Leases, and Leasehold Properties identified on the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;attached
(b) all Seller’s liabilities which are specifically excluded from this transaction include, but are not limited to, Seller’s liabilities to/for: vendors, employees, contractors, agents, invitees, suppliers, governmental authorities, taxes, wages, benefits, and pre-Closing obligations of Seller for accounts payable to under the extent included among Leases, the items causing an adjustment to Dealer Contracts and the Base Purchase Price contemplated in Section 3.3;Assumed Contracts (other than Pre-Closing Inventory Purchases).
(c) all liabilities Buyer and obligations associated with Seller agree that at Closing they shall terminate (or in the Assets case of Buyer, shall cause Lehigh Gas Corporation to terminate) the Sub-Jobber Agreement by and between Lehigh Gas Corporation and ▇▇▇▇ Oil Company, Inc. dated January 30, 2007, and thereafter Seller shall have no liability as a result of the sale transaction described herein under such agreement relating to an early termination of purchases from Valero or the Business in respect of Taxes for which Exxon. Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;shall indemnify Seller from any such liabilities.
(d) Buyer shall cause LGO to assume the ▇▇▇▇▇▇ Company contract identified on Exhibit E provided that Seller provides the ▇▇▇▇▇▇ Company with notice of termination/non-renewal of the contract within five (5) days after the Effective Date. LGO shall assume all liabilities and under the ▇▇▇▇▇▇ Company contract obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or first arising after the Closing Date; and shall indemnify Seller from any such liabilities and
, if Closing does not occur for any reason other than a breach of this Agreement by Seller, LGO shall indemnify Seller from any increased costs under the ▇▇▇▇▇▇ Company contract arising as a result of a termination effective prior to June 1, 2013 (i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(iif any), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement
Assumed Liabilities. On Subject to the Closing Dateterms and conditions set forth in this Agreement, Buyer shall, and may also cause a pertinent Buyer Subsidiary or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment Buyer Subsidiaries to, jointly and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall severally with Buyer, assume and agree to pay, discharge and perform as and when due, without recourse only the following obligations and liabilities of Seller (the "Assumed Liabilities"):
(a) All liabilities and obligations which pertain to Selleror arise during the period following the Closing Date and which arise under any written contract, License, agreement, arrangement, understanding or undertaking included in accordance with the respective terms Assets, including the Real Property Leases, the Pipeline Rights and subject the Assigned Contracts, and any other obligation or liability of Seller or any Affiliate of Seller (including those related to letters of credit and performance bonds) which is in the nature of a guaranty of the foregoing to the respective conditions thereofextent the same are enumerated in Schedule 2.3
(a) (together, all of the "Assumed Liabilities. Contracts").
(b) All of the following liabilities and obligations of Seller under open purchase orders pertaining to any of the FOP Facilities included in the Assets that were entered into by Seller in the ordinary course of business with respect to operation of any FOP Facility on or Buyer prior to the Closing and which relate toprovide for the delivery of goods or services subsequent to the Closing Date, or arise by virtue of Seller's except to the extent such purchase orders are listed as Excluded Assets on Schedule 2.2(q).
(c) Without limiting the representations and warranties contained in Article 3 or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) rights under Article 12 for a breach thereof, any and all liabilities and obligations of Seller respecting any changes or Buyer arising on or after improvements needed to the Closing Date under the Assigned AgreementsFOP Facilities, the Real Property Leasesif any, and the Transferable Permits for them to be in accordance material compliance with the terms thereofrespect to safety, building, fire, land use, access (including, without limitation, the Assigned Agreements entered into by Seller Americans With Disabilities Act (i"ADA")) prior to or similar Laws respecting the date hereof and (ii) after physical condition of the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;FOP Facilities.
(d) all liabilities Without limiting Seller's representations and obligations of Seller warranties contained in Article 3 or Buyer with respect Buyer's rights under Article 12 for a breach thereof and except for the Excluded Liabilities set forth in Section 2.4(k), any liability, obligation or responsibility under or related to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilitiesLaws, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including the common law liabilities relating to Environmental Conditions and Regulated Substances)law, whether such liability, responsibility liability or obligation or responsibility is known or unknown, contingent or accrued accrued, arising as a result of the Closing Date, including but not limited to: or in connection with (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring or other Laws, whether prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of any of the BusinessAssets; (ii) loss of life, injury to persons or property or damage or to natural resource damage resources (whether or not such damages were manifested loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) arising from Environmental Conditions caused (or Releases allegedly caused) by the presence or Release of Regulated Substances Hazardous Materials at, on, in, under, adjacent to, to or migrating from any the Assets prior to, on or after the Closing Date, including but not limited to Hazardous Materials contained in building materials at or adjacent to the Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or near the Assets; and (iii) any Remediation Measures (whether or not such Remediation Measures commenced before the Closing Date or commences commence on or after the Closing Date) in respect of Environmental Conditions or Regulated Substances Hazardous Materials that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from from, the Assets or in the soil, surface water, sediments, groundwater, landfill cells, ash deposits or in other environmental media at or adjacent to the Assets.
(e) Without limiting the representations and warranties contained in Article 3 or Buyer's rights under Article 12 for a breach thereof, and except for the Excluded Liabilities specifically listed in Sections 2.4(e) and 2.4(i), any Asset on and all liabilities, claims and expenses not otherwise enumerated above which in any way arise out of or after the Closing Date; (vi) any bodily injury, loss of life, property damage, are related to or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection associated with the ownership ownership, possession, use or operation of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition business conducted therewith or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on therefrom before or after the Closing DateClosing, of Regulated Substances generated in connection including, but not limited to, any and all liabilities, claims and expenses associated with the ownership decommissioning, dismantling or operation demolition of any portion of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume including any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;FOP Decommissioning Costs.
(f) All liabilities and obligations associated with the Assets in respect of Taxes for which Buyer is liable pursuant to Section 5.3 or Section 10.3, and any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a))sale, operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;Closing.
(g) all Such miscellaneous and sundry liabilities, identified by category on Schedule 2.3(g), if any, which liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating are ancillary to the ownership and operation of the Assets or and the FOP Business issued by or entered into but are not otherwise enumerated above. For purposes of clarification, Buyer will not assume any liabilities associated with any Governmental Authority and listed the litigation disclosed in the SEC filings referenced at Item 2 of Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business3.11.
Appears in 1 contract
Assumed Liabilities. On At the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment assume, and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to pay, perform and discharge as and when due, without recourse the same become due and payable or are required to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of be performed only the following liabilities and obligations Liabilities of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed LiabilitiesASSUMED LIABILITIES":):
(a) all liabilities and obligations of Seller or Buyer Liabilities arising on or after after, and relating to the period from and after, the Closing Date under the Assigned Agreements, the Real Property Leases, Station Contracts and the Transferable Permits in accordance with FCC Licenses, (b) all Liabilities for accrued payroll for the terms thereof, including, without limitation, current pay period (excluding any obligations to pay any bonuses) and accrued vacation or accrued sick leave for Transferred Employees as of the Assigned Agreements entered into by Seller Closing Date which were incurred (i) prior to in the date hereof ordinary course of business consistent with past practice of the Station and (ii) after the date hereof consistent as permitted in accordance with the terms of this Agreement, except and (c) any trade accounts payable of the Station as of the Closing Date (other than a trade account payable to any Affiliate of Seller) which remain unpaid and are not over thirty (30) days past due, and which were incurred (i) in each case the ordinary course of business consistent with past practice of the Station and (ii) as permitted in accordance with the terms of this Agreement. Notwithstanding the foregoing or anything to the extent such liabilities contrary set forth in this Agreement, the Assumed Liabilities shall not include any Excluded Liabilities or any Liability under any Excluded Contract. 2.7.2. EXCLUDED LIABILITIES "Excluded Liabilities" shall mean every Liability of Seller other than the Assumed Liabilities. The Excluded Liabilities shall remain the sole responsibility of and obligationsshall be retained, but for a breach or default by Seller, would have been paid, performed and discharged solely by Seller. Excluded Liabilities shall include: (a) any Liability under any Station Contract assumed by Buyer pursuant to Section 2.7.1 which arises after the Closing Date but which arises out of or otherwise discharged on or relates to any breach of such Station Contract that occurred prior to the Closing Date and are not otherwise included among Date; (b) any Liability for Income Taxes, including (i) any Income Taxes arising as a result of Seller's operation of its business or ownership of the items causing an adjustment Station prior to the Base Purchase Price contemplated Closing Date; -7- <PAGE> (c) any Liability under any Station Contract not assumed by Buyer under Section 2.7.1, including any Liability arising out of or relating to Seller's credit facilities or any security interest related thereto; (d) any Environmental Claim arising out of or relating to the operation of Seller's business or Seller's leasing, ownership or operation of real property; (e) except for the accrued payroll, accrued vacation and accrued sick leave of Transferred Employees as of the Closing Date which is assumed by Buyer as set forth in Section 3.3 2.7.1(b), any Liability under the Benefit Plans or relating to payroll, bonus, vacation, sick, leave, worker's compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for Seller's employees or former employees, or both; (f) except for any Station Contracts, any Liability under any employment, severance, retention or termination agreement with any employee of Seller or any of its Affiliates; (g) any Liability arising out of or relating to any employee grievance whether or not the extent affected employees are hired by Buyer; (h) any Liability of Seller to any shareholder of Seller or Affiliate of Seller; (i) any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Seller; (j) any Liability to distribute to any of Seller's shareholders or otherwise apply all or any part of the same arise consideration received hereunder; (k) any Liability arising out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued Proceeding pending as of the Closing Date, including but whether or not limited to: set forth in the Schedules; (il) costs any Liability arising out of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or Proceeding commenced after the Closing DateDate and arising out of, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent relating to, any occurrence or migrating from any Assets event happening prior to, on or after to the Closing Date; (iiim) any Remediation Liability arising out of or resulting from Seller's non-compliance with any legal requirement or order, injunction, decree, ruling, assessment or arbitration award of any Governmental Authority or arbitrator; (whether n) any Liability of Seller under this Agreement or not such Remediation commenced before the Closing Date any other Seller Document; and (o) any Liability of Seller based upon Seller's acts or commences omissions occurring after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; . -8- <PAGE> (ivp) any violations or alleged violations Liability under Section 7 of Environmental Laws occurring on or after that certain Employment Agreement for the Closing Date with respect to the ownership of any Assets or operation Vice-President and General Manager of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances atStation dated December 21, on, in, under, adjacent to or migrating from any Asset 2000 and identified as containing this Excluded Liability on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business2.1.
Appears in 1 contract
Sources: Asset Purchase Agreement
Assumed Liabilities. On At the Closing DateClosing, Buyer or and upon the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofset forth in this Agreement, all the Seller shall transfer to the Purchaser, and the Purchaser shall assume only the following liabilities, obligations and expenses of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to(collectively, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(a) all liabilities and obligations of Seller for future performance under Acquired Contracts that are due or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, become due on or after the Closing Date, with respect including all purchase orders issued by the Seller prior to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date in the Ordinary Course of Business (other than liabilities, obligations and expenses arising out of or commences after relating to any breach or default by the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released Seller prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of its obligations under the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4Acquired Contracts);
(fb) any Tax all obligations associated with customer orders (including Container Deposits made by customers) received by the Seller under an Acquired Contract prior to the Closing Date in the Ordinary Course of Business that may be imposed by any federal, state or local government remain unfulfilled on the ownership, sale (except and as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income extent of Sellerany breach or default by the Seller prior to the Closing Date of any of its obligations under such customer orders, and all obligations associated with any similar obligations received by the Seller under any Acquired Contract prior to the Closing Date in the Ordinary Course of Business that remain unfulfilled on and as of the Closing Date, except to the extent of any breach or default by the Seller prior to the Closing Date of any of its obligations relating thereto;
(gc) any Taxes (i) with respect to the Purchased Assets or the Packaged Gas Business for any Post-Closing Tax Period (including any obligation, liability or expense pursuant to any tax sharing agreement, tax indemnification or similar arrangement listed on Schedule 2.3(c)), or (ii) allocated to the Purchaser pursuant to Section 13;
(d) all liabilities liabilities, obligations and obligations expenses with respect to Owned Real Property and Leased Real Property (other than Environmental Liabilities arising out of Seller events or Buyer conditions that first occurred prior to the Closing Date to the extent such Environmental Liabilities are not caused, increased or otherwise exacerbated by the Purchaser) arising on from and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory ApprovalDate;
(he) customer advancesany obligation, customer deposits and construction advancesliability or expense relating to or arising out of the Purchased Assets with respect to (i) the manufacture, unperformed service obligationssale or lease by the Purchaser (or any Affiliate thereof) of any defective product or equipment, Easement relocation obligations(ii) any failure by the Purchaser (or any Affiliate thereof) to warn any Person with respect to any of its products or equipment or (iii) the breach by the Purchaser (or any Affiliate thereof) of any express or implied warranty made in connection with the manufacture, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projectssale or lease of any products or equipment, in each case directly related to the Business case, occurring from and outstanding on or arising after the Closing Date; and
(if) actions and proceedings based on conductany obligation, actions, circumstances liability or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related expense relating to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or out of the Joint Use Property from and after the Closing Date that are applicable to the Businessextent related to the use or operation of such Joint Use Property by the Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Airgas Northern California & Nevada Inc)
Assumed Liabilities. On Upon the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereofof this Agreement, all of at the Assumed Liabilities. All of Closing Purchaser agrees to assume the following liabilities and obligations of Seller or Buyer which relate toobligations, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case but only to the extent such liabilities or obligations relate to Purchased Assets which are transferred and obligationsassigned to Purchaser (or its designee) at the Closing or such other later transfer or assignment date expressly provided for in this Agreement (collectively, but the "ASSUMED LIABILITIES"):
(a) those liabilities that accrue following the Petition Date for (i) payroll and taxes relating to payroll for a breach or default by Seller, would have been paid, performed or otherwise discharged on or period not to exceed two (2) weeks prior to the Closing Date and (ii) federal and state unemployment taxes (and other payroll related taxes) that accrue during the period prior to Closing which are not otherwise included among due and payable in the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which ordinary course after the giving of notice or passage of time or both would constitute a default by SellerClosing;
(b) all those liabilities and obligations of Seller for accounts payable that accrue prior to the extent included among Closing Date in the items causing an adjustment ordinary course of business in favor of Sellers' current employees solely with respect to benefits or the Base Purchase Price contemplated cost of providing benefits accrued under employee benefit programs and policies (such as severance) prior to Closing Date for those employees employed by Purchaser, in Section 3.3the approximate amounts and for the periods set forth on Schedule 2.3(b) attached hereto;
(c) all liabilities under Seller's workers' compensation policies supported by letters of credit and all workers' compensation obligations associated with not subject to compromise in the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(aCases as set forth on Schedule 2.3(c) hereofattached hereto;
(d) all liabilities incurred following the Petition Date in the ordinary course of business, not to exceed $11.0 million in the aggregate (excluding Administrative Expenses and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to those liabilities set forth in Section 6.122.3(b), (c), (e) and (f));
(e) all liabilitiesliabilities under the Assigned Contracts together with "cure costs" listed on Schedule 2.3(e)(3) hereto; provided that if the "cure costs" as determined by the Bankruptcy Court are greater than the amount set forth in Schedule 2.3(e)(3), responsibilities and obligations Purchaser shall be responsible for such amount;
(f) liabilities of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances)the Credit Facilities, whether such liabilitywhich shall not, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: exceed $39.5 million;
(ig) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) all liabilities arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to or arising under the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damagePurchased Assets, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;and
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to all Liens against the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described Real Property listed in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business2.1(p) attached hereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Outsource International Inc)
Assumed Liabilities. On the Closing Date, but effective as of the Effective Time, the Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following liabilities and obligations Liabilities of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":):
(ai) all liabilities any account payable (other than an account payable to any Related Person of Seller) arising with respect to the System, that remains unpaid at and obligations is not delinquent as of the Effective Time but only to extent it is included to determine the Final True Up as set forth in Section 2.7(c);
(ii) any account payable arising with respect to the System, (other than a account payable to any Related Person of Seller ) incurred by Seller in the Ordinary Course of Business between September 19, 2002 and the Effective Time that remains unpaid at and is not delinquent as of the Effective Time but only to extent it is included to determine the Final True Up as set forth in Section 2.7(c);
(iii) any Liability to Seller's customers (other than an account payable) incurred by Seller in the Ordinary Course of Business outstanding as of the Effective Time, including, but not limited to Customer Deposits (but only to the extent that an amount of cash equal thereto is sold to Buyer hereunder and transferred (whether by transference in cash or by credit against the Purchase Price) to the Buyer at the Closing) (other than any Liability arising on out of or relating to a breach that occurred prior to the Effective Time);
(iv) any Liability arising after the Closing Date Effective Time under the Assigned Agreements, Seller Contracts (other than any Liability arising under the Real Property Leases, and contracts described on Exhibit 2.2 or arising out of or relating to a breach that occurred prior to the Transferable Permits Effective Time); any Liability of Seller arising after the Effective Time under any Seller Contract included in the Assets that is entered into by Seller after the date hereof in the Ordinary Course of Business or in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller provisions of this Agreement (i) other than any Liability arising out of or relating to a breach that occurred prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated SubstancesEffective Time), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; and
(v) any bodily injury Liability of Buyer under this Agreement or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after other document executed in connection with the Closing Date; Contemplated Transactions,
(vi) any bodily injury, loss Liability of life, property damage, Buyer based upon Buyer's acts or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or omissions occurring after the Closing DateEffective Time provided, however, that such Liability does not arise as a result of Regulated Substances generated Seller's Breach hereunder or is a Liability for which the Seller has an obligation to indemnify the Buyer in connection with the ownership of the Assets or the operation of the Business; and accordance herewith,
(vii) any Remediation of any Environmental Condition or Release of Regulated Substances Liability arising after Closing from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; System after the Closing, provided, however, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except such Liability does not result as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income a result of Seller;
(g) all liabilities and obligations of 's Breach hereunder or is a Liability for which the Seller or Buyer arising on and after has an obligation to indemnify the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessaccordance herewith.
Appears in 1 contract
Assumed Liabilities. On In connection with purchase and sale of the Closing Date, Buyer or the UniSource Designee acquiring the Purchased Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which this Agreement, at the Closing, the Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of the Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of Entities related to the Business (other than Excluded Liabilities) are referred to collectively as the "“Assumed Liabilities":”):
(a) all liabilities and obligations any payables as of the Closing Date of the Seller or Buyer arising Entities that are due on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior for goods and services to be rendered entirely after the date hereof Closing Date pursuant to a Seller Contract; and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities for goods and obligations, but for services rendered during a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to period commencing before the Closing Date and are not otherwise ending after the Closing Date (“Straddle Payables Period”) pursuant to a Seller Contract (the “Straddle Payables”); provided that the amount of Straddle Payables included among in Assumed Liabilities shall be equal to (A) (x) the items causing an adjustment number of days from and including the Closing Date to the Base Purchase Price contemplated end of such Straddle Payables Period, divided by (y) the total number of days in such Straddle Payables Period; multiplied by (B) the applicable Straddle Payable; provided further that, if the aggregate amount of payables pursuant to this Section 3.3 or 2.3(a) exceeds $100,000, the Seller shall pay to the extent Buyer an amount equal to the same arise out payables amount that is in excess of any $100,000; provided, further, that payables as of the date hereof for illustrative purposes only are set forth on Schedule 2.3(a), which Schedule 2.3(a) shall be updated and delivered by the Seller to the Buyer (and when updated prior to the Closing, shall include line items with respect to each payable, including with respect to each payable of the Specified Entities) to show such breach or default or out payables as of any event which after the giving of notice or passage of time or both would constitute a default by SellerClosing Date at least two Business Days prior to Closing;
(b) all liabilities and obligations accruing, arising out of Seller for accounts payable or relating to the extent included among conduct or the items causing an adjustment to ownership or use of the Base Purchase Price contemplated in Section 3.3;Purchased Assets by the Buyer or its successors and assigns from and after the Closing; and
(c) all liabilities and obligations associated with of the Seller under the Seller Contracts included in Purchased Assets to be performed on or the Business after, or in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilitiesperiods following, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Purchase Agreement (Neulion, Inc.)
Assumed Liabilities. On From and after the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment Purchaser will assume, and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume will pay, perform and agree to discharge when as they become due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of the Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case Entities solely to the extent such liabilities and obligationsobligations are required to be satisfied, but paid or performed after the Closing Date (collectively, the “Assumed Liabilities”):
(1) the Assumed Deposits;
(2) the Assumed Agreements, except for a breach any liability or default by Seller, would have been paid, obligation under such Assumed Agreements (i) to be performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of (ii) arising from a breach of, or default under, any such breach Assumed Agreements by the Seller Entities or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Sellertheir respective Affiliates;
(b3) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or accruing after the Closing Date for which Buyer is responsible pursuant that relate to Section 6.12;
(e) all liabilities, responsibilities and obligations or arise from the employment of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Transferred Business Employees by Purchaser after the Closing Date, including but not limited to: (i) costs of compliance (including capitalall compensation, operating benefits, severance, workers’ compensation and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or welfare benefit claims and employment-related liabilities incurred after the Closing Date;
(4) any Accrued Interest and Fees on the Assumed Deposits, with respect to where such Accrued Interest and Fees is not otherwise deducted in determining the ownership Net Book Value of any Purchased Asset;
(5) any Liability, duty or obligation of any nature whatsoever, whether accrued, absolute, primary or secondary, contingent or otherwise, direct or indirect, asserted or unasserted, known or unknown that arises based on the conduct of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or Transferred Business after the Closing Date with respect relating to the ownership of any Assets or operation of Transferred Business, the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Purchased Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing DateAssumed Liabilities, of Regulated Substances generated in connection with the ownership whatever kind or operation of the Assets; providednature, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilitiesprimary or secondary, responsibilities direct or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Dateindirect; and
(i6) actions and proceedings based the Card Rewards Liability. Purchaser’s obligations under this Section 2.2(a) shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any document delivered in connection herewith or any right or alleged right to indemnification hereunder or thereunder. All periodic fees or charges shall be shared on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after a proportionate basis as of the Closing Date that are applicable to the Businessin accordance with Section 3.3(b).
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First Niagara Financial Group Inc)
Assumed Liabilities. On Subject to Section 2.4, the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities rights and obligations of the Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership under the express written terms of the Assets or operation of TCVP Task Force Agreement and certain other agreements and customer purchase orders to which Seller is a party as described on Schedule 2.3 (the Business ("Ordinary Course Agreements"). Notwithstanding the foregoing, the Ordinary Course Agreements other than Excluded Liabilities) are referred the TCVP Task Force Agreement shall be assumed by the Buyer to collectively as the extent and only to the extent the duties and obligations thereunder accrue on or after the date of Closing, excluding any Retained Liabilities (collectively, the "Assumed Liabilities"). Buyer shall assume all rights and obligations of Seller under the TCVP Task Force Agreement, whenever accrued, and Seller shall pay for and perform, on behalf of Buyer, all of the obligations of the Seller that would have been due or deliverable from Seller prior to the date of Closing in accordance with the TCVP Agreement as if the same had not been assigned to Buyer hereunder. Without limiting the Seller's obligations with respect to its representations and warranties under Article 5, the Seller shall not retain or take responsibility for the following with respect to the Purchased Assets:
(a) All accounts payable that arise subsequent to the Closing;
(b) Any liability or obligation for any and all liabilities and obligations of Seller taxes of, or pertaining or attributable to, (i) the Buyer arising on for any period that begins immediately after the Closing, or (ii) the Business and/or the Purchased Assets for any period beginning immediately after the Closing Date (including, but in no way limited to, any and all taxes described in clauses (i) and (ii) of this Section 2.3(b)) for which liability is or may be sought to be imposed on the Seller under any successor liability, transferee liability or similar provision of any applicable federal, foreign, state or local law;
(c) Liabilities or obligations of the Seller or any of its Affiliates under any note, bond or other instrument;
(d) Any defects in products manufactured and sold after the Closing by the Buyer or any liability or obligation of the Buyer in respect of any express or implied representation, warranty, agreement or guaranty made (or claimed to have been made) by the Buyer or any of its Affiliates or imposed or asserted to be imposed by operation of law (except obligations or liabilities imposed on the Seller by operation of law after the Closing), provided that this Section 2.3(d) shall not affect any obligations of the Seller under the Assigned AgreementsContract Manufacturing Agreement;
(e) Any obligation of the Buyer (including indemnification and other contingent obligations) relating to (i) acts or omissions by Buyer subsequent to the Closing, (ii) goods or services provided to or for the Real Property Leasesbenefit of the Buyer subsequent to the Closing, and (iii) goods or services provided by or on behalf of Buyer or any of its licensees subsequent to the Transferable Permits in accordance Closing, or (iv) any pending or threatened Proceedings or Claims made or threatened subsequent to the Closing, to the extent related to acts or omissions of Buyer subsequent to the Closing, including without limitation any liability arising out of the payment or non-payment of worker's compensation premiums on behalf of employees of the Business or other issues arising out of the coverage of such employees with respect to worker's compensation insurance arising during any period subsequent to the terms thereofClosing;
(f) Any statutory liens accrued after the Closing against the Purchased Assets;
(g) Any violation by the Buyer of, or default by the Buyer under, any Legal Requirements, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms Applicable Environmental Laws, which imposes any obligation or liability on Buyer, or any remedial obligation of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise Buyer under any Applicable Environmental Law arising out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable related to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Purchased Assets on or after the Closing Date, except for any Income Taxes attributable subsequent to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory ApprovalClosing;
(h) customer advancesAny liability resulting from or relating to the employment relationship subsequent to the Closing between the Buyer or its Affiliates and any of the current employees of the Business or the termination of any such employment relationship with the Buyer or any of its Affiliates, customer deposits including, without limitation, accrued severance pay and construction advancesother similar benefits, unperformed service obligations, Easement relocation obligationsif any, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related any claim filed subsequent to the Closing or which may thereafter be filed by or on behalf of any current employee of the Business and outstanding on relating to the employment or termination of employment of any such employee by the Buyer or its Affiliates arising after from the Closing DateBuyer or its Affiliates acts or omissions subsequent to the Closing, including, but not limited to, any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation or workers' compensation subsequent to the Closing; andor
(i) actions and proceedings based on conduct, actions, circumstances Any liabilities or conditions arising or occurring on or after obligations of the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings Buyer arising from or directly related to any other Assumed Liabilityincurred in connection with the negotiation, preparation or execution of this Agreement or the transactions contemplated hereby, including fees and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessexpenses of counsel.
Appears in 1 contract
Assumed Liabilities. On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller Sellers the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse all of the following liabilities and obligations of Sellers, direct or indirect, known or unknown, absolute or contingent, which relate to Sellerthe Purchased Assets, other than Excluded Liabilities, in accordance with the respective terms and subject to the respective conditions thereofthereof (collectively, all of the "Assumed Liabilities. "):
(a) All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer Sellers arising on or after the Closing Date under the Assigned Sellers' Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, (i) the Assigned Agreements contracts, licenses, agreements and personal property leases entered into by Seller (i) prior Sellers with respect to the date hereof Purchased Assets, which are disclosed on Schedule 4.12(a) or not required by Section 4.12(a) to be so disclosed, and (ii) the contracts, licenses, agreements and personal property leases entered into by Sellers with respect to the Purchased Assets after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by SellerSellers, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerSellers;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all All liabilities and obligations associated with the Purchased Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 Sections 3.5 or 6.10(a6.8(a) hereof;
(dc) all All liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred arising on or after the Closing Date (i) for which Buyer is responsible pursuant to Section 6.126.10 and (ii) relating to the grievance and arbitration proceedings arising out of or under the Collective Bargaining Agreement on or after the Closing Date;
(ed) all liabilitiesSubject to the exceptions set forth in this Section 2.3(d), responsibilities and obligations of Seller any liability, obligation or Buyer arising responsibility under or related to Environmental Laws or relating to Environmental Conditions or Regulated Substances (including the common law liabilities relating to Environmental Conditions and Regulated Substances)law, whether such liability, responsibility liability or obligation or responsibility is known or unknown, contingent or accrued accrued, arising as a result of the Closing Date, including but not limited to: or in connection with (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring Laws, whether prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of any of the BusinessPurchased Assets; (ii) loss of life, injury to persons or property or damage or to natural resource damage resources (whether or not such damages were manifested loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) arising from Environmental Conditions caused (or Releases allegedly caused) by the presence or Release of Regulated Hazardous Substances at, on, in, under, adjacent to, to or migrating from any the Purchased Assets prior to, on or after the Closing Date, including, but not limited to, Hazardous Substances contained in building materials at or adjacent to the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or near the Purchased Assets; and (iii) any the Remediation (whether or not such Remediation commenced before the Closing Date or commences on or after the Closing Date) of Environmental Conditions or Regulated Hazardous Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after from, the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Purchased Assets or in the operation of soil, surface water, sediments, groundwater, landfill cells or in other environmental media at or adjacent to the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Purchased Assets; provided, however, that Buyer shall not assume any such liability, responsibility or obligation in respect of the foregoing items (i) through (iii) inclusive to the extent (x) disclosed in the Environmental Reports or (y) disclosed on Schedule 4.7 hereof; and provided further, that nothing set forth in this Section 2.3 subsection 2.3(d) shall require Buyer to assume any liabilities, responsibilities liabilities or obligations that are expressly excluded in Section 2.42.4 including, without limitation, liability for off-Site disposal of Hazardous Substances or for toxic torts as set forth in Sections 2.4(h), (i) and (j);
(e) All liabilities and obligations of Sellers with respect to the Purchased Assets arising on or after the Closing Date under the agreements or consent orders set forth on Schedule 2.3(e);
(f) With respect to the Purchased Assets, any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a))sale, operation of the Business or use of the Purchased Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;received by Sellers; and
(g) all All liabilities and obligations of Seller or Buyer arising on and after Sellers for the Closing Date under those Orders specifically relating to Decommissioning of the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessPlant.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Electric Co)
Assumed Liabilities. On At the Closing on the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver assume, by instruments of assumption reasonably satisfactory to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to counsel for Seller, in accordance with and discharge at the respective terms Closing or as they become due and subject to the respective conditions thereofpayable, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities"and no others:
(a) all liabilities and All obligations of the Seller or Buyer arising on or after the Closing Date under the Assigned Franchises, Leases and Rights-of-Way, Pole Attachment Agreements, the Real Property Leaseslicenses, and any agreements, consents, permits and other instruments relating to the Transferable Permits Acquired Systems and in existence on the Closing Date and entered into in the ordinary course of business to the extent included in the Assets to be Acquired;
(b) Those liabilities and obligations of Seller shown on the June 30, 1995 balance sheets of Seller as current liabilities, part of Schedule 3.03 attached thereto, to the extent that such liabilities are so shown and have not been paid prior to the Closing Date, unless as of the Closing Date, such liabilities no longer meet the definition of a current liability in accordance with generally accepted accounting principles ("GAAP"), and other than any liabilities secured by any of the terms thereofAssets to be Acquired;
(c) All unpaid liabilities and obligations of the Seller incurred in its operations in the ordinary course of business from the date of the June 30, including1995 balance sheets to the Closing Date which would appear as current liabilities on a balance sheet prepared in accordance with GAAP and are identified by name and amount on a schedule to be delivered by Seller to Buyer on the Closing Date, without limitationother than any liabilities secured by the Assets to be Acquired; and
(d) The remaining capital lease obligations of Seller under that certain Lease Agreement dated as of March 1, 1989 between the Town of Lancaster Industrial Development Agency and Athlete's Den Incorporated (the "Lancaster Capital Lease Agreement"), which was assigned to and assumed by Seller pursuant to that certain Assignment and Assumption of Lease dated July 1, 1993. As of June 30, 1995, the Assigned Agreements entered into remaining capital lease obligations of Seller under the Lancaster Capital Lease Agreement were $552,172. The liabilities and obligations described in this Section 1.02 so and to the extent to be assumed by Seller Buyer shall be herein referred to as "Assumed Liabilities." Buyer shall assume only those Assumed Liabilities specifically stated in this Section 1.02 and no others. Without limiting the foregoing, Buyer shall not assume or become liable for (i) any income, profits, franchise, sales, use, occupation, property, excise, ad valorem or any other tax to which the Assets to be Acquired are subject prior to the date hereof Closing Date or to which Seller is subject, and (ii) after Buyer shall not assume or become liable for any liability or tax due as a result of any contest, audit or other tax proceeding involving Seller or the date hereof consistent with the terms of this Agreement, except in each case Assets to the extent such liabilities and obligations, but be Acquired for a breach or default by Seller, would have been paid, performed or otherwise discharged any taxable period ending on or prior to the Closing Date and are not Date, except as otherwise included among the items causing an adjustment provided herein, (ii) any liabilities relating to the Base Purchase Price contemplated in Section 3.3 Excluded Assets, (iii) any liability for franchise fees, pole attachment fees, leasehold rentals, any obligation for wages, commissions, overtime, vacation and holiday pay, sick pay, bonuses, other employee benefits or any pension withdrawal liability, any on-going workers' compensation benefits for any accident arising prior to the extent the same arise out of any such breach Closing Date except for accrued overtime, sick pay, vacation pay, holiday pay or default or out of any event which after the giving of notice or passage of time or both would constitute other employee benefits treated as a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in current liability under Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a2.05(a)(xii) hereof;
(d) all liabilities , or any obligation under any employment agreement or employment-at-will relationship other than obligations arising from and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
Date, (eiv) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility any liability or obligation is known under any collective bargaining agreement in existence prior to or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs regardless of compliance (including capital, operating and other costs) relating whether the liability or obligation arises prior to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury liability or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations obligation of Seller or Buyer arising on and after the Closing Date which is not a current liability as defined under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessGAAP.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cable Tv Fund 11-B LTD)
Assumed Liabilities. On Subject to the Closing Dateconditions set forth in this Agreement, in addition to the Purchase Price and as additional consideration for the Purchased Assets, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under and shall pay, discharge or perform when due the Assigned Agreementsfollowing obligations and liabilities of Seller (collectively, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller "ASSUMED LIABILITIES"):
(i) prior to all trade accounts payable and accrued expenses reflected on the date hereof books and records of Seller as of the Closing Date and incurred in the ordinary course of business (iiexcept (A) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such related to any of the Excluded Assets, (B) those which represent Affiliate payables, (C) any liabilities for Taxes, (D) Excluded Liabilities and obligations(E) any liability or obligation arising out of or in connection with any breach, but for a breach violation or default by Seller, would have been paid, performed or otherwise discharged in respect thereof occurring on or prior to the Closing Date including service warranty of Seller related thereto other than service warranty of Seller for which Seller has fully performed the service warranty work thereof as of the date of this Agreement); PROVIDED THAT such trade accounts payable and are accrued expenses shall not otherwise included among include any legal, accounting, brokerage or other professional fees and expenses incurred by Seller or the items causing an adjustment to Seller Parties in connection with the Base transactions contemplated hereby or the Goodwill Purchase Price contemplated in Section 3.3 Agreement, the Equipment Purchase Agreement, the CCC Merger Agreement or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;▇▇▇▇ ▇▇▇▇ Merger Agreement; and
(bii) all the liabilities and obligations of Seller for accounts payable under the Assumed Contracts and other written agreements, leases, contracts and commitments entered into in the ordinary course of business which are not required by the terms of this Agreement to be listed on the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of CONTRACTS SCHEDULE requiring performance by Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing and which are validly assigned to Buyer (but excluding any liability or obligation arising out of or in connection with any breach, violation or default in respect thereof occurring on or prior to the Closing Date including service warranty of Seller related thereto other than service warranty of Seller for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued has fully performed the service warranty work thereof as of the Closing Date, including but not limited to: (i) costs date of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(aAgreement)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Assumed Liabilities. On the Closing Date, and effective as of the Effective Time, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall will assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of only the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation Liabilities of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, whether or not disclosed in the Financials:
(i) any Liability arising under any of the Assumed Contracts, other than (A) Liabilities arising from performance of the Assumed Contracts prior to the Closing Date (including but not limited to: (i) costs of compliance (including capital, operating and other costs) to Liabilities relating to products delivered prior to the Closing Date) or (B) any violation Liability for overpayments or alleged violation prepayments by customers under any such Assumed Contract; but including the Liabilities provided for Section 2.3(a)(iv) and Section 3.2 as well as any credits provided in the ordinary course of Environmental Laws occurring business of the Business for RMA’s (returned merchandize authorizations);
(ii) Liabilities owed by Seller to the Transferred Employees for accrued vacation, accrued sick leave and accrued severance benefits attributable to all periods prior toto the Closing Date (“Accrued Benefits”), as well as the Liabilities referenced in Section 3.3(f). For clarification, (A) Buyer is not assuming any obligation to pay out any severance benefits included in the Accrued Benefits to Transferred Employees that arises immediately upon termination of their employment with Seller; (B) Buyer shall grant vacation and sick time benefits included in the Accrued Benefit to each Transferred Employee or pay each Transferred Employee the value thereof upon such Transferred Employee’s termination of employment with Buyer; and (C) Buyer shall pay accrued severance included in the Accrued Benefits to a Transferred Employee only upon the termination of such Transferred Employee with Buyer;
(iii) the Assumed Payables;
(iv) the Warranty Obligations; and
(v) any Liability for product or strict liability claims, general liability claims or other negligent acts or omissions relating to products of the Business sold on or after the Closing Date, with respect to the ownership . All of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or to be transferred to and assumed by Buyer arising on and after pursuant to this Section 2.3(a) are herein referred to collectively as the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other “Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the BusinessLiabilities.”
Appears in 1 contract
Sources: Asset Purchase Agreement (Remec Inc)
Assumed Liabilities. On From and after the Closing DateClosing, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment Purchaser will assume, and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume will pay, perform and agree to discharge when as they become due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case solely to the extent such liabilities and obligationsobligations are required to be satisfied, but paid or performed after the Closing Date (collectively, the “Assumed Liabilities”):
(1) the Assumed Deposits;
(2) the Assumed Agreements, except (i) for a breach any liability or default by Seller, would have been paid, obligation under such Assumed Agreements (x) to be performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of (y) arising from a breach of, or default under, any such breach Assumed Agreements by Seller or default its Affiliates and (ii) for any liability or out of any event which after the giving of notice or passage of time or both would constitute a default by Sellerobligation listed on Schedule 2.2(a)(2);
(b3) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) obligations, including all liabilities compensation, benefits, severance, workers’ compensation and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities welfare benefit claims and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or employment-related liabilities, accruing after the Closing Date for which Buyer is responsible pursuant that relate to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as arise from the employment of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or Transferred Banking Center Employees by Purchaser after the Closing Date, but excluding any Liabilities with respect to the ownership Employee Plans;
(4) any Accrued Interest and Fees on the Assumed Deposits; and
(5) any Liability, duty or obligation of any nature whatsoever, whether accrued, absolute, primary or secondary, contingent or otherwise, direct or indirect, asserted or unasserted, known or unknown that arises based on the conduct of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or Banking Centers after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) use of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or Purchased Assets after the Closing Date with respect or the Assumed Liabilities, of whatever kind or nature, primary or secondary, direct or indirect. Purchaser’s obligations under this Section 2.2(a) shall not be subject to the ownership offset or reduction by reason of any Assets actual or operation alleged breach of the Business; (v) any bodily injury representation, warranty or loss of life arising from Environmental Conditions covenant contained in this Agreement or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated document delivered in connection with the ownership herewith or any right or alleged right to indemnification hereunder or thereunder. All periodic fees or charges shall be shared on a proportionate basis as of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into in accordance with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(iSection 3.3(b), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Financial Institutions Inc)
Assumed Liabilities. On Sellers shall transfer the Acquired Assets to Buyer on the Closing Date free and clear of all Security Interests and Buyer shall not, by virtue of its purchase of the Acquired Assets, assume or become responsible for any debts, liabilities, obligations or encumbrances of Sellers or of any other person relating to the Acquired Assets, incurred prior to the Closing Date. The only debts, liabilities, obligations or encumbrances of any nature of Sellers being assumed by Buyer (the “Assumed Liabilities”) are (a) the obligations of Sellers under the terms of the Leases, Licenses and Assigned Contracts arising after the Closing Date in the ordinary course provided, that such Leases, Licenses and Assigned Contracts have been assigned and validly transferred to Buyer, (b) the obligations of Sellers for telephone listings for the Stores arising after the Closing Date, Buyer and (c) the prorated share of personal and real property taxes for the Leased Properties and Fee Properties for periods after the Closing Date, or for periods after the Fee Property Closing Date with respect to the Fee Properties purchased pursuant to the Cross Option Agreement, except to the extent any such taxes have previously been pre-paid by Sellers. All other liabilities of Sellers or related to the Stores or the UniSource Designee acquiring Business (whether known or unknown) shall remain obligations of Sellers (the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of “Excluded Liabilities”). Except for the Assumed Liabilities. All of the following liabilities , Buyer shall not assume or be liable for, and obligations of Seller or Buyer which relate does not undertake to attempt to, assume or arise by virtue discharge, any Security Interest or any other payment obligation, performance obligation, contingency or liability, whether fixed, contingent, liquidated, unliquidated, matured, unmatured, asserted or unasserted, of Seller's either Seller whether or Buyer's ownership of not relating to the Assets Stores or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller Sellers’ liabilities with respect to:
(i) prior to the date hereof and any obligation for borrowed money or any debt of any kind now or hereafter;
(ii) any obligation arising out of or relating to the operation of the Stores or the Business other than the Assumed Liabilities;
(iii) any obligation under any Lease, License (including license transfer fees arising from the transactions contemplated hereby) or Assigned Contract assumed by Buyer which arises after the date hereof consistent with the terms Closing Date but which arises out of this Agreement, except in each case or relates to the extent such liabilities and obligations, but for a breach any action or default by Seller, would have been paid, performed or otherwise discharged on or inaction of Sellers occurring prior to the Closing Date and are not otherwise included among the items causing an adjustment or to Sellers breach of any Lease, License or Assigned Contract prior to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by SellerClosing Date;
(biv) all liabilities and obligations of Seller any obligation for accounts payable Taxes (as defined below) for periods ending prior to the extent included among Closing Date whether or not due as of the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
Closing Date (c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred Fee Properties for periods ending on the Fee Property Closing Date whether or after not due as of the Fee Property Closing Date for which Buyer is responsible the Fee Properties), including (i) any Taxes arising as a result of Sellers’ operation of the Stores, the Business or ownership of the Acquired Assets or Fee Properties, (ii) any Taxes that will arise as a result of the sale of the Acquired Assets pursuant to Section 6.12this Agreement or the Fee Properties pursuant to the Cross Option Agreement that are attributed to Sellers and (iii) any deferred Taxes of any nature. For purposes of this Agreement, “Taxes” means all taxes however denominated imposed by any federal, state, local or foreign government or any agency or political subdivision of any such government, including all net income, alternative or add-on minimum taxes, gross income, gross receipts, sales, use, goods and services, capital, production, transfer, ad valorem, earnings, franchise, profits, license, withholding (including all obligations to withhold or collect for Taxes imposed on others), payroll, disability, employer health, employment, excise, estimated, severance, stamp, occupation, premium, property, environmental, excess profit or windfall profit taxes, custom duty, value added or other taxes, governmental fees or other like assessments or charges of any kind whatsoever, together with any interest and any penalties or additions to tax;
(ev) any obligation to any current or former employees including, without limitation, payroll, vacation, sick leave, worker’s compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind;
(vi) any employment, severance, retention, termination or similar agreement with any current or former employee of Sellers, any obligation of Sellers to indemnify, reimburse or advance amounts to any officer, director, employee or agent of such Seller, or to any third party or otherwise;
(vii) any obligation for Sellers’ accounts payable related to the Stores or the Business prior to the Closing Date;
(viii) any obligation for trade accounts payable prior to the Closing Date;
(ix) any obligation to distribute to any of Sellers’ stockholders or otherwise apply all liabilitiesor any part of the consideration received hereunder;
(x) any obligation arising out of any legal proceeding finally adjudicated, responsibilities and obligations of Seller pending or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued threatened as of the Closing Date, including but whether or not limited to: set forth in the Disclosure Schedules;
(ixi) costs any obligation arising out of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or legal proceeding commenced after the Closing DateDate and arising out of, with respect or relating to, any occurrence or event happening prior to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date;
(xii) any obligation arising out of or resulting from Environmental Conditions Sellers’ non-compliance with any legal requirement or Releases order of Regulated Substances at, on, in, under, adjacent to, any Governmental Entity;
(xiii) any obligation under this Agreement or migrating from any Assets prior to, on other document executed in connection with the transactions contemplated hereby;
(xiv) any obligation based upon Sellers’ acts or omissions occurring after the Closing Date; or
(iiixv) any Remediation (whether obligation for insurance claims arising out of or not such Remediation commenced before the Closing Date that relate to any act, omission, occurrence or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released event happening prior to, on or after to the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for regardless when such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Businessclaim is made.
Appears in 1 contract
Sources: Assets Purchase Agreement (Papa Johns International Inc)