Assumption of Certain Liabilities. (a) Subject to the terms and conditions of this Agreement, except as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller (the "Acquired Liabilities"): (i) the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon; (ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, on or after the Closing Date under the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and (iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below. (b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement: (i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto); (ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract; (iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income; (iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby; (v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements; (vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date; (vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts; (viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease; (ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations; (x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation; (xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or (xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Comtech Telecommunications Corp /De/)
Assumption of Certain Liabilities. Purchaser is not assuming any debt, liability or obligations of the Company, any Shareholder or any Individual Seller, whether known or unknown, fixed or contingent, except for the liabilities of the Company to be paid or performed after the Closing Date under the Assumed Contracts listed in SCHEDULE 1.1(c) (athe "Assumed Contracts") Subject which are assigned by the Company to the terms Purchaser (the "Assumed Liabilities"). Except as and conditions of to the extent otherwise expressly provided in this Agreement, except as otherwise specifically provided in this Section 1.2 (including in Purchaser does not, and shall not, assume or be deemed to assume, nor shall Purchaser discharge, be responsible for or liable with respect to any other liabilities or obligations of the Retained LiabilitiesCompany or any other person, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):
(i) the liabilities and obligations of Seller whether arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in partprior to, on or after the Closing Date under the Contracts(collectively, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreementwithout limitation:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation obligations of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises Company arising out of or relates relating to any contract or agreement not fully and effectively assigned to and specifically assumed by Purchaser pursuant to this Agreement, including without limitation any obligations of the employment Shareholders or service provider the Company to ▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇ arising out of the working relationship between Seller the Company and each such individual;
(b) any liability or its Affiliates and any such individuals, or (B) arises obligations of the Company arising out of or relates relating to events any employee benefit (including health) plans, programs, policies or conditions occurring on other arrangements or agreements which provided the Company's employees with benefits, including the payment of severance pay or special bonuses, if any, to terminated employees under agreements or policies not constituting Assumed Contracts;
(c) any liability or obligations of the Company arising out of any litigation, claim, arbitration or other similar proceeding relating to the Purchased Assets before the Closing Date, including any obligation to grant options regardless of whether or pay severancenot such litigation, retention or "stay" bonusesclaim, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation arbitration or other forms of incentive compensation similar proceeding is pending, threatened or post-retirement compensation of any employees of Seller or its Affiliatesasserted before, including any such liabilities and obligations which arise on or before after the Closing Date;
(viid) any liability or obligation liabilities and obligations of Seller or its Affiliates arising or incurred in connection with the negotiationCompany relating to the Excluded Assets, preparation including without limitation all automobile leases and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other expertsautomobile loans;
(viiie) any indebtedness and all liabilities and obligations, direct or indirect, fixed or contingent, for borrowed moneyTaxes, including any indebtedness secured by a Lien whether or not such Taxes are assessed prior to, on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital leaseafter the Closing Date;
(ixf) except accounts payable of the Company and credit balances of accounts receivable of the Company as otherwise expressly set forth hereinof the Closing Date, including without limitation, all Company, Shareholder and Individual Seller credit card balances, any liability or amounts due Valley Independent Bank, and miscellaneous payables other than a pro rata share of the rent and utilities for the Company's building for the month in which the Closing Date occurs; and
(g) any obligation of Seller or its Affiliates relating the Company to any business, division of its trust account(s) or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing obligaitons of any such alleged infringement, dilution, violation or misappropriation;
(xitrust account(s) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinbeneficiary thereof.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except as otherwise specifically provided in this Section 1.2 (including in respect of at the Retained LiabilitiesClosing, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and Purchaser agrees to pay, assume and discharge or performperform when due, as appropriateand shall assume pursuant to the Assumption Agreement, the following specific liabilities and obligations of Seller Liabilities (collectively, the "Acquired Assumed Liabilities"):
(i) the liabilities and obligations of Seller arising in the regular and ordinary course all accounts payable of the Business that are to the extent incurred in the ordinary course and (A) reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, on or after the Closing Date under the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date Base Balance Sheet or (B) that arise out incurred after the date thereof and not in violation of any breach or default (including for provisions of this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller Agreement (the "Retained LiabilitiesAssumed Payables"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations post-Closing Date Liabilities arising under the Transferred Contracts that do not arise out of or relate to any breach of contract, breach of warranty, tort, infringement or violation of Law or other similar event, occurrence or omission on or prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;Date; and
(iii) except all other current Liabilities of Seller explicitly set forth on the Base Balance Sheet.
(b) Notwithstanding anything to the extent contrary in this Agreement, except for the Assumed Liabilities expressly listed in Section 2.02(a), Purchaser shall not assume, or in any way become liable, for any Liabilities of Product warranties covered by Section 1.2(a)(i) aboveSeller or the Business of any nature whatsoever, any product liabilitywhether related to the Business or the Transferred Assets and whether disclosed on the Disclosure Memorandum or otherwise, breach of contract, product warranty, product return or similar claim, and regardless of when made or assertedby whom asserted (collectively, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any the "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (AExcluded Liabilities"), including the following Liabilities:
(i) all Liabilities relating to or arising out of the pre-Closing Date operation of the Business, including: (A) any federal, state, foreign or local Tax payable Liabilities with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect any products or services that were sold or provided prior to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including product liability, negligence and infringement claims and any obligation to grant options related claims and litigation arising prior to, on or pay severanceafter the Closing Date; (B) any Liabilities arising (1) by reason of any violation or alleged violation of Laws or otherwise under Laws, retention including any Environmental Law or "stay" bonusesHealth and Safety Law, or similar arrangements;
(vi2) all liabilities and obligations by reason of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller breach or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained alleged breach by Seller or any of its Affiliates involving direct of any Contract, commitment or indirect compensation Judgment; and (C) any Liabilities relating to employees any Proceeding arising out of Seller or its in connection with Seller's conduct of the Business or any other conduct of any of Seller's Affiliates, including insurance coverageofficers, severance benefitsdirectors, disability benefitsemployees, deferred compensationconsultants, bonusesagents or advisors on or prior to the Closing Date.
(ii) all Liabilities arising out of, stock optionsor related to, stock purchase, phantom stock, stock appreciation the Excluded Assets;
(iii) all Liabilities under any existing lines of credit or other forms of incentive compensation debt instruments or post-retirement compensation of any employees of Seller or its Affiliatesarrangements, including any such liabilities drawings thereunder and obligations which unpaid interest thereon, and all other Liabilities for borrowed money;
(iv) all pre-Closing Date Liabilities arising under the Transferred Contracts, including all Liabilities that arise out of or relate to any breach of contract, breach of warranty, tort, infringement or violation of Law or other similar event, occurrence or omission on or before prior to the Closing Date;
(viiv) all Liabilities to or with respect to Seller's Affiliates (including those Affiliates named in Section 3.28) and Seller's current or former shareholders, employees and consultants (including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ De La ▇▇▇▇▇), including any liability Liabilities under or with respect to Seller's existing or former employee compensation, benefit plans, programs, policies or arrangements, including Seller's Liabilities under any multiemployer pension plans (whether incurred as a result of the transactions contemplated hereby or otherwise), except as set forth in Section 5.07(b);
(vi) all Liabilities for Taxes, including any Liability or obligation of Seller in respect of any amount of Taxes which are imposed on or its Affiliates arising measured by the income or profits of Seller for any period;
(vii) all Liabilities for any costs and expenses incurred by Seller in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated herebyby this Agreement, including any Liabilities in favor of ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, RSM McGladrey, Inc. and fees and expenses of counsel, accountants, brokers, finders and other expertsCatalina Capital Advisors LP;
(viii) any indebtedness for borrowed moneythe Gardena Lease, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising as such lease may be amended from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital leasetime to time;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates Liabilities relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition the acquisition of assets from a Person formerly known as Interstate Scaffolding, Inc., whether such business, division Liabilities are in the form of deferred purchase price or operations;otherwise; and
(x) any liability or obligation all of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees Seller's Liabilities under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets Agreement and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinRelated Agreements.
Appears in 1 contract
Sources: Asset Purchase Agreement (Brand Energy & Infrastructure Services, Inc)
Assumption of Certain Liabilities. (a) Subject to With the terms and conditions exception of this Agreement, except as otherwise specifically provided those liabilities expressly assumed by Buyer in this Section 1.2 (including in respect accordance with the provisions of the Retained Liabilities, as set forth in paragraph (bsubparagraph 3(b) below) or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):
(i) the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, on or after the Closing Date under the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who Buyer does not assume and shall remain in no event be liable therefor in accordance with the terms for any debts, liabilities or obligations of this Agreement. Seller shall indemnify Buyer from all Retained LiabilitiesSeller, including any Retained Liabilities created by statute whether fixed or common lawcontingent, in accordance with Section 6.1 hereofknown or unknown, liquidated or unliquidated, secured or unsecured, or otherwise. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and Buyer does not Acquired Liabilities for the purposes of this Agreement:
assume (i) all liabilities any liability for Taxes (as hereinafter defined) payable for any periods prior to and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on including the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller any long term or its Affiliates prior to the Closingbank debt, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except any liability or obligation to the extent any employee, director, officer or stockholder of Product warranties covered by Section 1.2(a)(i) aboveSeller, including without limitation, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), liability in connection with any product licensedEmployee Benefit Plan (as hereinafter defined), leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federaltrade payables, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation for brokerage commissions, finders' fees or professional services of any nature owed to kind incurred in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby, (vi) any employees, former employees, agents liability or independent contractors of Sellerobligation arising under any arbitration or litigation proceeding, whether or not employed by Buyer after the Closing Datedisclosed in this Agreement, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business events occurring on or prior to the Closing Date Date, whether or not disclosed in this Agreement, including, without limitation, any liability or obligation arising from (including A) environmental matters, (B) the infringement by Seller upon any predecessor operations)intellectual property rights of others, or (C) the failure to comply with any requirements of law or any requirements of governmental bodies or agencies having jurisdiction over Seller or the conduct of Seller's business, and (viii) any liability or obligation arising as a result of, or which existence constitutes, a breach of any of Seller's representations, warranties or covenants contained in this Agreement. Seller and each of the Principals, jointly and severally, agree to indemnify Buyer and ORC and their respective officers, directors and agents, from, against and in respect of any liabilities or obligations of Seller not assumed by Buyer hereunder. Notwithstanding the foregoing, any expenses incurred by Buyer in defending any suits or claims relating to the foregoing, including any claimsreasonable costs and attorney's fees, shall be subject to, and applied against, the sum of $150,000 set forth in subparagraph 8(b) of this Agreement
(b) Buyer hereby assumes only the following liabilities and obligations or litigation of Seller:
(i) liabilities and obligations arising out of or relating to events or conditions occurring on or before from and after the Closing Date under the Seller Agreements,
(including ii) all obligations to complete open customer sales orders reflected on Seller's books and records as of the threatened Closing Date, and
(iii) the obligation to maintain $125,000 of insurance on the life of ▇▇▇▇▇▇▇ Statis while he is employed by Buyer or pending litigation set forth on Schedule 2.18 hereto), regardless of when made its successor or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinassignee.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except Purchaser shall assume, effective as otherwise specifically provided in this Section 1.2 (including in respect of the Retained LiabilitiesClosing, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to from and after the Closing Purchaser shall pay, perform and discharge or performwhen due, as appropriate, only the following specific liabilities liabilities, obligations and obligations commitments of Seller (the "Acquired “Assumed Liabilities"):”), except to the extent constituting Excluded Liabilities:
(i) the liabilities all liabilities, obligations and obligations commitments of Seller arising in under the regular Assigned Contracts and ordinary course Transferred Permits to the extent such liabilities, obligations and commitments arise from the operation or conduct of the Business that are reflected on after the face Closing;
(ii) all liabilities, obligations and commitments to the extent arising from the ownership of the Closing Net Asset Statement Acquired Assets or the operation of the Business after the Closing;
(excluding any notes or schedules theretoiii) in accordance with Section 1.6all liabilities, obligations and commitments of Seller that constitute “current liabilities”, but only to the extent expressly set forth and quantified on the final and binding Closing Statement and taken into account in the Closing Working Capital Amount (as set forth on the final and binding Closing Statement);
(iv) all liabilities, obligations and commitments for Taxes arising out of or relating to the Acquired Assets or the operation or conduct of the amount reflected thereonBusiness, in each case, for any Post-Closing Tax Period; and
(v) all liabilities, obligations and commitments with respect to the Transferred Employees relating to employment or employee benefits that Purchaser has specifically agreed to assume pursuant to this Agreement (the “Covered Employee Liabilities”).
(b) Notwithstanding anything in Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreement to the contrary, and regardless of any disclosure to Purchaser, Purchaser shall not assume or be liable for any liabilities, commitments or obligations of Parent, Seller or any of their affiliates, of any kind, other than the Assumed Liabilities (the “Excluded Liabilities”), all of which shall be retained and paid, performed and discharged when due by Parent, Seller or their affiliates, as applicable, including the following:
(i) any Indebtedness of Parent, Seller or any of their affiliates, or any Guarantee by Parent, Seller or any of their affiliates of any Indebtedness;
(ii) all liabilities any liability, obligation or commitment (A) arising out of any actual or alleged breach by Parent, Seller or any of their affiliates of, or nonperformance by Seller under, any Contract (including any Assigned Contract) prior to the Closing or (B) accruing under any Assigned Contract or Transferred Permit with respect to any period prior to the Closing; Table of Contents
(iii) any liability, obligation or commitment arising out of (A) any Proceeding, whether or not such Proceeding is pending as of the Closing, arising from the operation or conduct of the Business prior to the Closing or Seller’s ownership of any Acquired Asset or Excluded Asset prior to the Closing or (B) any actual or alleged violation by Parent, Seller or any of their affiliates of any Applicable Law prior to the Closing;
(iv) any “current liability” of Seller to the extent not expressly identified and obligations quantified on the final and binding Closing Statement and taken into account in the Closing Working Capital Amount (as set forth on the final and binding Closing Statement);
(v) any liability, obligation or commitment of Seller that are required relates to, or that arises from, any Excluded Asset, or that arises out of the distribution to, or ownership or operation by, Seller of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable, (A) arising out of or relating to be performed the Acquired Assets or fulfilledthe operation or conduct of the Business, in whole each case, for any Pre-Closing Tax Period or (B) of Seller for any taxable period, except as provided in partSection 1.03(a)(iv) (provided that for purposes of this clause (vi), on or after Section 1.02(a)(xiv), Section 1.02(b)(vi) and Section 1.03(a)(iv), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a taxable period that includes (but does not end on) the Closing Date under shall be allocated between the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled Pre-Closing Tax Period and the Post-Closing Tax Period based on the number of days during such taxable period elapsed on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation number of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer days during such taxable period elapsed after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability liability, obligation or obligation of Seller or its Affiliates arising or commitment for transfer, documentary, sales, use, registration, value-added and other similar Taxes (including all applicable real estate transfer Taxes and real property transfer gains Taxes) and related amounts (including any penalties, interest and additions to Tax) incurred in connection with this Agreement, the negotiationAncillary Agreements, preparation and execution of this Agreement the Acquisition and the other transactions contemplated hereby, hereby and fees and expenses of counsel, accountants, brokers, finders and other expertsthereby (“Transfer Taxes”);
(viii) any indebtedness for borrowed moneyliability, obligation or commitment, including any indebtedness secured by a Lien on any Acquired AssetsOn-Site Environmental Liability, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(xA) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred Environmental Law prior to the Closing Closing, (the "Intercompany Payables"); or
(xiiB) any other liability Release of Seller Hazardous Materials at any location prior to the Closing, or its Affiliates whatsoever(C) any Environmental Claim arising from, including any liability based upon or relating to conditions existing or events or omissions occurring prior to the Closing, in each case to the extent arising out of or relating to the ownership or operation of the Acquired Assets and Business, the Business on Property or prior to any other property currently or formerly owned, leased or operated in connection with the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein.Business;
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject Buyer shall not assume any Liabilities of Seller except for those Liabilities which Buyer expressly assumes pursuant to this Section 0. On the terms and subject to the conditions of this Agreement, except as otherwise specifically provided in this Section 1.2 (including in respect Buyer shall, on the Closing Date, only assume those Liabilities of the Retained LiabilitiesSeller, if any, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):
(i) the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement Date, which are detailed on Schedule 2.2(a) (excluding any notes or schedules thereto) in accordance with Section 1.6the “Assumed Liabilities”). Seller shall retain and be responsible for paying, but only to the extent of the amount reflected thereon;
(ii) all liabilities performing and obligations of Seller that are required to be performed or fulfilleddischarging when due, in whole or in part, on or after the Closing Date under the Contracts, except that and Buyer shall not assume or agree to payhave any responsibility for, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to Liabilities of Seller as of the Closing Date or other than the Assumed Liabilities (B) that arise out of any breach or default (including for this purpose any event whichsuch Liabilities, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure other than the Assumed Liabilities being referred to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer herein as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "“Retained Liabilities"”), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the generality of the foregoing, the retained liabilities shall include, without limitation, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
Liabilities: (i) all liabilities and obligations any claims or Liabilities of creditors of Seller that do not relate to the Business or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
Purchased Assets; (ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under for any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoevertaxable period, including any liability for Taxes arising out of from or relating attributable to the ownership or operation of the Acquired Business or use or ownership of the Purchased Assets and the Business for any taxable periods (or portions thereof) ending on or prior to the Closing Date (the “Pre-Closing Tax Period”), and including any predecessor operationsTransfer Taxes (as such term is defined in Section 0), including in each case alllocable to Seller pursuant to this Agreement; (iii) any claims, obligations Liability of Seller relating to or litigation arising out of or relating to events or conditions occurring on or before incurred in connection with this Agreement and the transactions contemplated hereby and thereby, including transaction related costs and expenses; (iv) any Liability under any contract arising after the Closing Date that arises out of or relates to a breach of, or default under that contract prior to the Closing Date; (including v) all Employee Liabilities; (vi) any Liability of the threatened Seller to any Affiliate of the Seller or pending litigation set forth on Schedule 2.18 hereto)other related Person of the Seller; (vii) any Liability to indemnify, regardless reimburse or advance any amounts to any Employee or to any officer, director or agent of when made the Seller; (viii) any Liability to distribute to any of the Seller’s shareholders or assertedotherwise apply all or any part of the consideration received by the Seller under this Agreement; (ix) any Liability in respect of leased premises of Seller commonly known as 7▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇, except▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ or any other leased premises used by Seller in the case Business; (x) any Liability in respect of this subparagraph any inter-company debt, loans or similar agreements or arrangements between the Seller and any of its Affiliates; and (xii), for xi) any Liability arising out of or resulting from the Acquired Liabilities as specifically and expressly set forth hereinSeller’s compliance or non-compliance with any applicable law.
Appears in 1 contract
Assumption of Certain Liabilities. On the Closing Date, Buyer shall not be obligated to assume, and shall not assume, any of the liabilities or obligations of Seller (a) Subject absolute, accrued, contingent or otherwise), whether existing prior to or as of the terms Closing Date, or asserted after the Closing Date and conditions of this Agreementrelating to events that occurred before the Closing Date, or otherwise, except as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes shall assume and agrees to pay, discharge or performperform and discharge, as appropriatein accordance with their respective terms, the following specific liabilities and obligations of Seller (collectively referred to herein as the "Acquired Assumed Liabilities"):
(ia) the liabilities and all obligations of Seller arising in the regular and ordinary course of business under the Business that are reflected on Assigned Leases or the face Assigned Contracts to the extent transferable;
(b) all trade accounts payable, customer deposits and accrued expenses, but not any accrued income or sales taxes or employee related expenses including, but not limited to, withholding taxes, 401(k) withholdings or matching contributions, company payroll taxes, vacation accruals, bonuses, miscellaneous withholdings, or accrued salaries and wages, associated with the Assets of Seller as of the Closing Net Asset Statement (excluding any notes or schedules thereto) Date arising in accordance with Section 1.6, but only to the extent ordinary course of the amount reflected thereonbusiness;
(c) the obligations of Seller as of the Closing Date to fill orders received by Seller in the ordinary course of business (i) for the manufacture and sale of lodging and office furniture, (ii) all for the sale of parts, or (iii) for service and maintenance of said furniture or parts; and
(d) the other obligations and liabilities and obligations of Seller that are required listed on Exhibit 1.7 hereto. Nothing in this Agreement shall be deemed to be performed create any obligation on the part of Buyer to continue the employment of any individual or fulfilled, in whole to create any contract right or in part, on or after the Closing Date under the Contracts, except that entitlement with respect thereto. Buyer shall not assume have no responsibility for any amounts, obligations, liabilities, compensation, severance pay or agree benefits of any kind or nature due to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to Seller's employees through the Closing Date or (B) that arise out arising as a result of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) the termination by Seller of any provision such employees in connection with the transactions contemplated by this Agreement, including, without limitation, any benefits that may arise under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and any Contractand all such liabilities and obligations shall be the sole responsibility of Seller. Seller shall prepare and file all payroll reports and Forms W-2 for its employees through the Closing Date. Unless expressly stated in this Section 1.7 or in Exhibit 1.7, including nothing in this Agreement shall be deemed to create any obligation on behalf of the Buyer with regard to any liabilities or obligations arising out of any failure to perform any agreement, contract, commitment the operation of the Seller's Business or lease in accordance with its terms the ownership of the Assets prior to or through the Closing; and
(iii) the costsClosing Date of any nature whatsoever, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, whether known or unknown and whether unknown, direct or indirect, continigent or accrued, matured or unmatured including, but not determinable as limited to, claims for violation of the Closing) any statutes, laws, regulations, rules, ordinances or orders of Seller except for the Acquired Liabilities as specifically and expressly provided for aboveany authority, whether such liabilities federal, state or obligations relate to paymentlocal, performance tax claims or otherwisetax liens, labor relation claims, OSHA related claims, EEOC related claims, employee benefit claims, ERISA related claims, employee claims, environmental, health and all liabilitiessafety claims, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contractEPCRA related claims, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any and product licensed, leased or liability claims for products sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after through the Closing Date, that (A) arises out medical, dental and workers' compensation claims, computer software license claims, claims for personal injury, claims for injury to property, claims for breach of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individualscontract, or (B) arises out of or relates to events or conditions occurring claims for compensatory damages, claims for punitive damages, creditor claims, claims by lenders, claims on or before the Closing Dateaccounts, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliatesclaims for unpaid debts, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained and all claims by Seller or any of its AffiliatesSeller's shareholders, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or all litigation arising out of or relating the foregoing claims. All liabilities of the Seller not herein defined as Assumed Liabilities shall hereinafter be referred to events or conditions occurring on or before as the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein"Retained Liabilities."
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except Purchaser shall assume, effective as otherwise specifically provided in this Section 1.2 (including in respect of the Retained LiabilitiesClosing, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to from and after the Closing Purchaser shall pay, perform and discharge or performwhen due, as appropriate, all the following specific liabilities liabilities, obligations and obligations commitments of Seller Sellers (the "Acquired Assumed Liabilities"):), other than any Excluded Liabilities:
(i) all liabilities, obligations and commitments of Sellers under the Assigned Contracts, except obligations, liabilities and or obligations arising out of Seller arising in the regular and ordinary course of the Business that are reflected any actual or alleged breach on the face of or prior to the Closing Net Asset Statement (excluding any notes by Sellers of, or schedules thereto) in accordance with Section 1.6, but only nonperformance on or prior to the extent of the amount reflected thereonClosing by Sellers under, any Assigned Contract;
(ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior to and following the Closing;
(iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iii);
(iv) the Working Capital Liabilities; and
(v) all other liabilities, obligations and obligations commitments relating to or arising primarily out of Seller that are required to be performed the operation or fulfilled, in whole or in part, on or conduct of the Business arising after the Closing Date under Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the ContractsClosing Date, except that Buyer but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing Date.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume any of the following liabilities, obligations and commitments of Sellers (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers or agree one of their respective affiliates:
(i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to paythe Closing;
(iv) any liability, discharge obligation or perform any liabilities or obligations under any Contracts commitment of Sellers arising out of (A) that were required any claim, suit, action or proceeding ("Proceeding") pending or, to be performed or fulfilled on or prior to the Knowledge of Sellers, threatened as of the Closing Date or (B) that arise out any actual or alleged violation by Sellers or any of their affiliates of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms Applicable Law prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability liability, obligation or obligation with respect commitment of Sellers to compensation of the extent it relates to, or that arises out of, any nature owed to any employeesExcluded Asset, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individualsdistribution to, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(Bvi) any account payable or accrued expense of Sellers that relates to, or that arises out of or relates to events or conditions occurring on or before the Closing Date, including to the extent the same are not included in Working Capital Liabilities and any obligation to grant options indebtedness for borrowed money or pay severance, retention or "stay" bonuses, or similar arrangementsguarantees thereof;
(vivii) all liabilities any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and obligations payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of Seller under any "employee pension benefit plan" this Agreement or otherwise, (as defined in Section 3(2A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the Employee Retirement Income Security Act operation or ownership of 1974the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliatesapplicable, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation Purchaser (but Purchaser shall not be deemed to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including have assumed any such liabilities and obligations which arise underlying tax liability arising on or before the Closing Date;
(vii) any liability or obligation based upon the number of Seller or its Affiliates arising or incurred days of such period included in connection with the negotiation, preparation and execution of this Agreement pre-Closing Tax period and the transactions contemplated hereby, and fees and expenses number of counsel, accountants, brokers, finders and other expertsdays of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assetsexcept as expressly provided in Section 5.08, any liabilities arising from liability, obligation or commitment of Sellers or any guaranty, suretyship or similar arrangement, any liabilities of their affiliates under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital leaseSeller Benefit Plan;
(ix) except as otherwise expressly set forth hereinany liability, any liability obligation or obligation commitment of Seller Sellers that relates to, or its Affiliates relating to any businessthat arises out of, division services performed or operations not constituting the Businessproducts manufactured, including any business, division shipped or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out on behalf of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business Sellers on or prior to the Closing Date (including claims of negligence, personal injury, product damage, product liability, product warranties, promotional obligations, strict liability, product recall or any predecessor operationsother claims (including workers' compensation, employer's liability or otherwise)), whether such liability, obligation or commitment relates to or arises out of accidents, injuries or losses occurring on or prior to the Closing Date; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closing, including, without limitation, any claimssalary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or litigation commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or relating to events or conditions occurring on or before prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result of the consummation of the Acquisition;
(including xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the threatened or pending litigation set forth "Excluded Debt") pursuant to any Contract listed on Schedule 2.18 hereto1.03(b)(xiv), regardless of when made or asserted, except, in the case of this subparagraph .
(xii), for c) Purchaser shall acquire the Acquired Liabilities as specifically Assets free and expressly set forth hereinclear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except as otherwise specifically provided at the Closing, Purchaser agrees to assume, pay, perform and discharge when due, all liabilities or obligations listed in this Section 1.2 (including 2.2, and only such liabilities or obligations listed in respect of this Section 2.2, whether arising before or after the Retained LiabilitiesClosing and whether known or unknown, as set forth in paragraph (b) below) fixed or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller contingent (the "Acquired Assumed Liabilities"):
(i) All liabilities set forth on the liabilities summary adjusted balance sheet and obligations income statement of Seller the Company as of December 31, 1998, a copy of which is included as Exhibit 2.2 (the "Adjusted December 31, 1998 Balance Sheet") or arising thereafter in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;business; and
(ii) all liabilities and obligations of Seller that are required to be performed for payment or fulfilled, in whole or in part, on or after the Closing Date performance under the Contractsterms of the Commitments, except that Buyer shall not assume or agree Commitments excluded pursuant to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below10.3(b).
(b) Buyer is not assuming Notwithstanding anything herein to the contrary or any liabilitiesother writing to the contrary, commitments Purchaser shall assume only the Assumed Liabilities, and neither Purchaser nor any of its Affiliates shall assume any other liability or obligations (contingent or absolute, known or unknown and whether or not determinable as obligation of the ClosingSellers (or any predecessor owner of all or part of the Business) of Seller except for whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain obligations of the Acquired Liabilities as specifically and expressly provided for above, whether Sellers (or any such predecessor owner) (all such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred being assumed being herein referred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Excluded Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the generality of the foregoing, all of the following Excluded Liabilities shall be considered Retained Liabilities and not Acquired Liabilities for include the purposes of this Agreementfollowing:
(i) all liabilities and obligations of Seller or its Affiliates under which are attributable to any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding Excluded Assets, or associated with the realization of the benefits of any notes or schedules thereto)of the Excluded Assets;
(ii) all Tax liabilities (excluding the Permitted Encumbrances);
(iii) all liabilities and obligations arising prior relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance or other employee health or safety matters and any other employee benefit plans, programs or arrangements associated with or relating to the Closing under employment in the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates Business, prior to the Closing, of any employee or former employee (including, but not limited to, all Employee Benefit Plans) and all liabilities and obligations relating to or obligations arising from any breach the employment or default or alleged breach or default by Seller or its Affiliates cessation of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason employment of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates such employee prior to the Closing, including any except to the extent that such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or incomeliabilities are accrued on the Closing Date Balance Sheet;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect all liabilities and obligations arising from worker's compensation claims relating to the business, assets (other than Buyer's Taxes accruing from and after the pre-Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated herebyevents;
(v) any liability or obligation with respect to compensation of any nature owed to any employeesall liabilities and obligations covered, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates but only to the employment extent covered, by any insurance maintained by the Sellers or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangementstheir respective Affiliates;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Commitments excluded pursuant to Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"10.3(b)) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates all liabilities and obligations arising or incurred in connection with from the negotiationsuits, preparation claims and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;actions described on Exhibit 5.19; and
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any all other liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter and obligations of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior Sellers to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or extent not relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Standard Automotive Corp)
Assumption of Certain Liabilities. (a) Subject The Purchaser agrees to assume at the terms and conditions of this Agreement, except as otherwise specifically provided in this Section 1.2 (including in respect of Closing the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes Assumed Liabilities and agrees to pay, discharge or perform, as appropriate, perform the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):
(i) the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules incident thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, on or after the Closing Date under the Contracts, except that Buyer . The Assumed Liabilities shall not assume include any obligation or agree to payliability arising from any default, discharge breach, misfeasance, malfeasance or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to nonfeasance by the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) . Nothing contained in this Section 2 or in any instrument or assumption executed by the costsPurchaser at the Closing shall be deemed to release or relieve the Seller from its respective representations, up to $15,000warranties, covenants and agreements contained in this Agreement or any certificate, schedule, instrument or document executed pursuant hereto or in connection herewith, including, without limitation, the obligations of the financial audit report of Seller to indemnify the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor Purchaser in accordance with the terms provisions of this Agreement. Seller The Assumed Liabilities shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) include any liability or obligation of the Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership (a) any actual or operation alleged tortious conduct of the Acquired Assets and Seller or any of its employees or agents, (b) except as set forth in Section 3.3, any product liability claim related to a home delivered to a home buyer prior to Closing, (c) any claim for breach of warranty or contract by the Business Seller, (d) any claim predicated on strict liability, (e) the violation by Seller of any law, ordinance or regulation in effect prior to the Closing, (f) any business or business activities of the Seller which are not part of the Seller's Business, (g) any liability for expenses or taxes, if any, in connection with, resulting from, or arising out of this Agreement or the transactions contemplated hereby, (h) any liability of the Seller for any federal, state or local taxes of any kind or character (other than taxes assumed under this Agreement), (i) any liability of the Seller under or arising by reason of this Agreement, or (j) any liability for any amounts payable under the Contracts or under any other agreement to which the Seller is a party for the period prior to the Closing Date (including except as shown on the Accrual and Deposits Schedule. In particular, Seller shall pay and remain solely responsible for all trade payables under the Contracts or otherwise which apply to units closed prior to the Closing Date. The Seller hereby indemnifies and holds harmless the Purchaser against any predecessor operations)losses, including costs, damages, or fees arising or related to the period on or before Closing or other amounts payable for any claimsliabilities or obligations of the Seller relating to the Included Assets arising or related to the period on or before Closing other than the Assumed Liabilities. The Purchaser hereby indemnifies and holds harmless the Seller against any losses, obligations costs, damages, or litigation fees arising out of or relating to events or conditions occurring the period on or before after the Closing Date (or other amounts payable for any liabilities or obligations of the Purchaser relating to the Included Assets arising or relating to the period after the Closing, including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless Assumed Liabilities. The indemnifications contained in this Section shall be subject to the provisions of when made or asserted, except, in Section 14. The obligations of the case of Seller and the Purchaser pursuant to this subparagraph (xii), for Section shall survive the Acquired Liabilities as specifically Closing and expressly set forth hereinthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Assets (Calton Inc)
Assumption of Certain Liabilities. (a) Subject to the terms and conditions 2.3.1 Buyer shall not assume any liabilities of this AgreementCitizens or Seller or any of their Affiliates, except as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, that Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, shall assume the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):obligations:
(ia) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller arising in the regular and ordinary course respect of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes Contracts and Permits assigned or schedules thereto) transferred to Buyer pursuant to this Agreement in accordance with Section 1.6the respective terms thereof, but only except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the amount reflected thereonclaims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(iie) all liabilities and obligations of Seller that are related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to be performed or fulfilledcomplete scheduled construction and other capital projects for the Business, in whole or in part, each case relating to the Business and outstanding on or arising after the Closing Date under the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations for any breach or default by, or payment obligations of, Seller under any such Contracts (A) that were required to be performed and Permits occurring or fulfilled arising or accruing on or prior to the Closing Date Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) responsibility relating to customer deposits held by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior on the Closing Date and relating to the ClosingBusiness; and
(iiih) all liabilities and obligations imposed on Buyer by any PUC in connection with the costs, up to $15,000, of the financial audit report operation of the Business for or the fiveownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-month period ended May 31, 2002, requested Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a condition to Closing set forth in Section 5.1(g) belowwaiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
(b) 2.3.3 Buyer is shall not assuming assume any liabilities, commitments or obligations (contingent or absolute, known or unknown absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Acquired Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"), who shall remain liable therefor in accordance with . Each of the terms of this Agreement. Seller shall indemnify Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities, Liabilities including any Retained Liabilities liabilities created or which arise by statute or common law, in accordance with Section 6.1 hereofincluding CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limiting limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return toxic tort or similar claimclaim for injury to person or property, regardless of when made or asserted, which to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or which to the extent that it is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any service performed or product licensed, leased distributed or sold by, or any service performed by or on behalf of, of any of the Seller Parties or its any of their Affiliates prior to the Closing, including any such claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any Purchased IP product delivered in connection with the performance of services provided by Seller and any such claim seeking recovery for consequential damages, lost revenue or income;
(ivb) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign income or local other Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets)assets, properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence any of the negotiation Seller Parties or consummation by any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller or its Affiliates of this Agreement (other than the liabilities and obligations exclusively related to any common plant assets included among the transactions contemplated herebyAcquired Assets);
(ve) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, former employees, agents or independent contractors of Sellerany of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing DateClosing, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions to the extent occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(viif) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or its any of their Affiliates arising existing as a result of any act, failure to act or incurred other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in connection with this Agreement, except to the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;extent set forth in Section 7.4; or
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ixk) except for the Assumed Liabilities as otherwise specifically and expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability extent arising out of or relating to the ownership or operation of the Acquired Assets and or the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring on or before the Closing Date (including Date, and any liability associated with any business other than the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinBusiness.
Appears in 1 contract
Assumption of Certain Liabilities. On the Closing Date, Buyer shall not be obligated to assume, and shall not assume, any of the liabilities and obligations of Seller, whether existing as of the Effective Time, or asserted or first arising after the Effective Time and relating to events that occurred before the Effective Time, or otherwise, which liabilities and obligations Seller agrees to pay and discharge (a) Subject to collectively, the terms and conditions of this Agreement"Excluded Liabilities"), except as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, that Buyer hereby assumes shall assume and agrees agree to pay, perform and discharge or perform, as appropriate, the following specific liabilities and obligations of Seller as of the Effective Time, which shall be assumed by Buyer on the Closing Date as of the Effective Time:
(a) the "Acquired Liabilities"):future obligations of Seller under the Contracts and the Permits;
(b) except as provided to the contrary in Sections 2.1(e) and 11.2 and the Assignment and Assumption Agreement, the future obligations of Seller with respect to the Real Property, the Additional Property (if applicable) and the Leasehold Property, including Seller's obligations under the Bellwood Quarry Lease and the Rockmart Quarry Lease, including Environmental Liability; and
(c) subject to Seller's delivery of the Asphalt Supply Agreement in the form contemplated by Section 2.1(e), Seller's liability to ▇▇▇▇▇▇ County, Georgia for royalty payments pursuant to the Bellwood Quarry Lease. Anything to the contrary in this Agreement or otherwise notwithstanding, Buyer shall not assume, and shall have no liability with respect, to any liabilities or obligations of Seller which are not expressly assumed by Buyer pursuant to this Article III, including, without limitation, any of the following items, each of which items shall constitute an Excluded Liability hereunder:
(i) the liabilities and obligations any liability or obligation arising out of any Employee Benefit Plan (as hereinafter defined) maintained by or covering employees of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding or to which Seller has made any notes contribution or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
which Seller could be subject to any liability; (ii) all liabilities any losses, costs, expenses, damages, claims, demands and obligations judgments of Seller that are required to be performed or fulfilledevery kind and nature (including the defenses thereof and reasonable attorneys' and other professional fees) related to, in whole arising out of, or in partconnection with Seller's failure to comply with any bulk sales or transfer act or any similar statute as enacted in any jurisdiction, on domestic or after the Closing Date under the Contracts, except that Buyer shall not assume foreign; (iii) any liability or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise obligation arising out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller or any of the Shareholders prior to the Effective Time of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses contract to which Seller or any such Affiliate of the Shareholders is a party on the Closing Date, other than (a) Contracts, and (b) obligations any liability or obligation of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior related to the Closing performance required under the Contracts that are required under and the terms Permits before the Effective Time; (iv) any liability of Seller or any of the applicable Contract Shareholders with respect to be performed by Seller any claim or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates cause of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claimaction, regardless of when made or asserted, which arises (A) out of or is based upon in connection with the business and operations of Seller prior to the Effective Time, (B) with respect to any product purchased or manufactured or any service provided by Seller prior to the Effective Time, including, without limitation, any liability or obligation of Seller or any of the Shareholders (I) pursuant to any express or implied representation, warranty, agreement agreement, or guarantee made by Seller, or alleged to have been made or which is imposed or asserted to be (II) imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed or product designed, manufactured, sold or leased by or on behalf of, of Seller or its Affiliates prior to the ClosingEffective Time, including including, without limitation, any such claim relating related to any Purchased IP product delivered in connection with the performance of such service and any such claim claims seeking recovery to recover for consequential damagesdamage, lost revenue or income;
, including pursuant to any doctrine of product liability, or (ivC) out of or in connection with the Business and operations of Seller prior to the Effective Time under any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A)law, including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Sellerrule, or its Affiliatesregulation relating to (I) taxation, or (BII) incident to employment or arising as a consequence termination of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
employment; (v) any liabilities or obligations of Seller or any of the Shareholders relating to the Retained Assets; (vi) any liability or obligation with respect obligation, arising prior to compensation the Effective Time or as a result of any nature owed the Closing, to any employeesemployee, former employees, agents agent or independent contractors contractor of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individualsClosing, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) Benefit Plan maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to covering employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing DateSeller;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except as otherwise specifically provided Purchaser and the Cytec Parties shall execute and deliver at the Closing an Assumption Agreement, in this Section 1.2 the form of Exhibit M (including in respect of the Retained Liabilities"Assumption Agreement"), as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes pursuant to which Purchaser shall assume and agrees agree to pay, perform and discharge when due, all liabilities or performobligations whatsoever, as appropriatewhether arising before or after the Closing and whether known or unknown, fixed or contingent, other than the following specific liabilities and obligations Excluded Liabilities, that relate primarily to or arise primarily out of Seller the operation of the Business (the "Acquired Assumed Liabilities"):), including:
(i) all obligations and liabilities of Parent (which term, for purposes of this Section 2.03(a), shall exclude Cyanamid) or Seller under the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereonAcquired Contracts;
(ii) all Business Accounts Payable in existence as of the Closing Date;
(iii) all obligations and liabilities in respect of any and all acrylic fiber or activator sold by the Business at any time, including obligations and liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability and other claims;
(iv) all obligations and liabilities of Parent or Seller that are required in respect of amounts paid by any customer of the Business in excess of amounts owed by such customer;
(v) all obligations and liabilities arising as a result of the ownership or occupancy of Parent or Seller, or the operation of the activities conducted at, the Santa Rosa Facility or any Leased Property, other than the Ex▇▇▇▇ed Real Property, including all obligations and liabilities relating to be performed personal injury or fulfilledEnvironmental Laws, in whole other than Off-Site Environmental Liabilities and Escambia Bay Liabilities;
(vi) all obligations and liabilities of Parent or Seller to or in partrespect of any current or former employee of the Business, other than any obligations or liabilities arising under or in connection with the Excluded Contracts;
(vii) all the obligations and liabilities arising under or in connection with the Benefit Plans to the extent assumed by Purchaser under Section 5.05;
(viii) any obligation or liability for Taxes attrib utable to the Business or relating to the Acquired Assets, other than Taxes based on gross receipts, income or after the Closing Date under the Contracts, except that Buyer shall not assume profits for any periods (or agree to pay, discharge or perform any liabilities or obligations under any Contracts (Aportions thereof) that were required to be performed or fulfilled ending on or prior to the Closing Date or (B) and other than Taxes that arise out are the responsibility of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure the Cytec Parties pursuant to perform any agreement, contract, commitment or lease in accordance with its terms prior to the ClosingSection 5.07; and
(iiiix) the costssubject to Section 2.02(c), up to $15,000, of the financial audit report all obligations and liabilities arising out of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition which pertain to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operationsBusiness Intellectual Property;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any ContractSterling Specified Exposure Liability; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;and
(xi) any liability of Seller Sterling Escambia Bay Liability. Notwithstanding anything contained herein or in the Business to any Affiliate of Seller incurred prior Assumption Agreement to the Closing (contrary, Purchaser shall not be responsible for, and the "Intercompany Payables"); or
(xiiAssumed Liabilities shall not include, the Excluded Liabilities, all of which the Cytec Parties agree to retain, pay, perform, fulfill, discharge and remain responsible for. Nothing in this Section 2.03(a) or in any other liability of Seller Ancillary Agreement is intended to negate or its Affiliates whatsoever, including any liability arising out of or relating to impair the ownership or operation indemnification obligations of the Acquired Assets and the Business on Cytec Parties under Article VIII or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, elsewhere in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinAgreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cytec Industries Inc/De/)
Assumption of Certain Liabilities. On the Closing Date, Buyer shall not be obligated to assume, and shall not assume, any of the liabilities or obligations of Seller (a) Subject absolute, accrued, contingent or otherwise), whether existing prior to or as of the terms Closing Date, or asserted after the Closing Date and conditions of this Agreementrelating to events that occurred before the Closing Date, or otherwise, except as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes shall assume and agrees to pay, discharge or performperform and discharge, as appropriatein accordance with their respective terms, the following specific liabilities and obligations of Seller (collectively referred to herein as the "Acquired Assumed Liabilities"):
(ia) the liabilities and all obligations of Seller arising in the regular and ordinary course of business under the Business that are reflected on Assigned Leases or the face Assigned Contracts to the extent transferable;
(b) all trade accounts payable, customer deposits and accrued expenses, but not any accrued income or sales taxes or employee related expenses including, but not limited to, withholding taxes, 401(k) withholdings or matching contributions, company payroll taxes, vacation accruals, bonuses, miscellaneous withholdings, or accrued salaries and wages, associated with the Assets of Seller as of the Closing Net Asset Statement (excluding any notes or schedules thereto) Date arising in accordance with Section 1.6, but only to the extent ordinary course of the amount reflected thereonbusiness;
(c) the obligations of Seller as of the Closing Date to fill orders received by Seller in the ordinary course of business (i) for the manufacture and sale of lodging and office furniture, (ii) all for the sale of parts, or (iii) for service and maintenance of said furniture or parts; and
(d) the other obligations and liabilities and obligations of Seller that are required listed on Exhibit 1.7 hereto. Nothing in this Agreement shall be deemed to be performed create any obligation on the part of Buyer to continue the employment of any individual or fulfilled, in whole to create any contract right or in part, on or after the Closing Date under the Contracts, except that entitlement with respect thereto. Buyer shall not assume have no responsibility for any amounts, obligations, liabilities, compensation, severance pay or agree benefits of any kind or nature due to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to Seller's employees through the Closing Date or (B) that arise out arising as a result of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) the termination by Seller of any provision such employees in connection with the transactions contemplated by this Agreement, including, without limitation, any benefits that may arise under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and any Contractand all such liabilities and obligations shall be the sole responsibility of Seller. Seller shall prepare and file all payroll reports and Forms W-2 for its employees through the Closing Date. Unless expressly stated in this Section 1.7 or in Exhibit 1.7, including nothing in this Agreement shall be deemed to create any obligation on behalf of the Buyer with regard to any liabilities or obligations arising out of any failure to perform any agreement, contract, commitment the operation of the Seller's Business or lease in accordance with its terms the ownership of the Assets prior to or through the Closing; and
(iii) the costsClosing Date of any nature whatsoever, up to $15,000whether known or unknown, of the financial audit report of the Business for the five-month period ended May 31direct or indirect, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absoluteaccrued, known matured or unknown and whether unmatured including, but not limited to, claims for violation of any statutes, laws, regulations, rules, ordinances or not determinable as orders of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for aboveany authority, whether such liabilities federal, state or obligations relate to paymentlocal, performance tax claims or otherwisetax liens, labor relation claims, OSHA related claims, EEOC related claims, employee benefit claims, ERISA related claims, employee claims, environmental, health and all liabilitiessafety claims, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contractEPCRA related claims, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any and product licensed, leased or liability claims for products sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after through the Closing Date, that (A) arises out medical, dental and workers' compensation claims, computer software license claims, claims for personal injury, claims for injury to property, claims for breach of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individualscontract, or (B) arises out of or relates to events or conditions occurring claims for compensatory damages, claims for punitive damages, creditor claims, claims by lenders, claims on or before the Closing Dateaccounts, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliatesclaims for unpaid debts, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained and all claims by Seller or any of its AffiliatesSeller's shareholders, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or all litigation arising out of or relating the foregoing claims. All liabilities of the Seller not herein defined as Assumed Liabilities shall hereinafter be referred to events or conditions occurring on or before as the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein"Retained Liabilities."
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to the terms and conditions 2.3.1 Buyer shall not assume any liabilities of this AgreementCitizens or Seller or any of their Affiliates, except as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, that Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, shall assume the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):obligations:
(ia) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller arising in the regular and ordinary course respect of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes Contracts and Permits assigned or schedules thereto) transferred to Buyer pursuant to this Agreement in accordance with Section 1.6the respective terms thereof, but only except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) intentionally omitted;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or Indiana protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the amount reflected thereonclaims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(iie) all liabilities and obligations of Seller that are related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to be performed or fulfilledcomplete scheduled construction and other capital projects for the Business, in whole or in part, each case relating to the Business and outstanding on or arising after the Closing Date under the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations for any breach or default by, or payment obligations of, Seller under any such Contracts (A) that were required to be performed and Permits occurring or fulfilled arising or accruing on or prior to the Closing Date Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) responsibility relating to customer deposits held by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior on the Closing Date and relating to the ClosingBusiness; and
(iiih) all liabilities and obligations imposed on Buyer by any PUC in connection with the costs, up to $15,000, of the financial audit report operation of the Business for or the fiveownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-month period ended May 31, 2002, requested Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a condition to Closing set forth in Section 5.1(g) belowwaiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
(b) 2.3.3 Buyer is shall not assuming assume any liabilities, commitments or obligations (contingent or absolute, known or unknown absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Acquired Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or Indiana otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"), who shall remain liable therefor in accordance with . Each of the terms of this Agreement. Seller shall indemnify Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities, Liabilities including any Retained Liabilities liabilities created or which arise by statute or common law, in accordance with Section 6.1 hereofincluding CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limiting limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return toxic tort or similar claimclaim for injury to person or property, regardless of when made or asserted, which to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or which to the extent that it is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any service performed or product licensed, leased distributed or sold by, or any service performed by or on behalf of, of any of the Seller Parties or its any of their Affiliates prior to the Closing, including any such claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any Purchased IP product delivered in connection with the performance of services provided by Seller and any such claim seeking recovery for consequential damages, lost revenue or income;
(ivb) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign income or local other Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets)assets, properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence any of the negotiation Seller Parties or consummation by any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller or its Affiliates of this Agreement (other than the liabilities and obligations exclusively related to any common plant assets included among the transactions contemplated herebyAcquired Assets);
(ve) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, former employees, agents or independent contractors of Sellerany of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing DateClosing, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions to the extent occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(viif) any liability or obligation of Seller or its Affiliates arising or incurred except to the extent set forth in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired AssetsSection 2.3.1(d), any liabilities liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from any guarantypollution, suretyship contamination or similar arrangementprotection of the environment, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal human health or mixed) which in conformity with generally accepted accounting principles ("GAAP") is safety or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on natural resources or relating to any actual or alleged infringement, dilution, violation arising from the presence or misappropriation Release or threat of any patent, copyright, trademark, trade secret or other intellectual property right Release of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein.Hazardous
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Section 1.4(b), the terms Purchaser shall not assume any Liabilities of the Seller (whether or not related to the Transferred Assets or the Business), including without limitation: (i) any Liabilities of the Seller relating to the Excluded Assets; (ii) any Tax Liabilities of the Seller, except to the extent allocated to the Purchaser under Sections 1.5 and conditions 5.4(b); (iii) any Liabilities of the Seller relating to accounts payable or other indebtedness; (iv) any wages or salaries or other Liabilities relating to employment (or termination of employment) of any employees of the Seller (including accrued vacation); (v) any Liabilities under any Seller Contracts (other than Liabilities relating to Transferred Contracts that arise after the Closing Date); or (vi) any other Liabilities of the Seller.
(b) Notwithstanding Section 1.4(a) or any other provision of this Agreement to the contrary, from and after the Closing, the Purchaser shall assume, discharge and perform as and when due all of the obligations of the Seller under the Transferred Contracts, including assuming liability for any claims based on or relating to the transfer of the Product Materials acquired from [**] by the Seller to the Purchaser pursuant to this Agreement, except as otherwise specifically provided but in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):
(i) the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but case only to the extent of the amount reflected thereon;
that such obligations: (iii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, on or arise after the Closing Date under and (ii) do not arise from or relate to any breach by the Seller of any provision of any of such Transferred Contracts; and (iii) do not arise from or relate to any event, except that Buyer shall not assume circumstance or agree to pay, discharge condition occurring or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled existing on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event whichthat, with notice or lapse of time, or both, would constitute such or result in a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller Transferred Contracts (the "Retained “Assumed Liabilities"”), who shall remain liable therefor in accordance with . Notwithstanding the terms of this Agreement. that certain Consent Letter by and among the Purchaser, the Seller shall indemnify Buyer from all Retained Liabilitiesand The Rockefeller University, including any Retained Liabilities created by statute or common lawdated November 30, in accordance with Section 6.1 hereof. Without limiting 2011 (the foregoing“Consent Letter”), all for purposes of clarity, the Seller acknowledges and agrees that the Purchaser is only assuming the obligations of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under Rockefeller License Agreement and the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax Ancillary Agreements (as defined in Section 2.12(b)the Consent Letter) (A), including any federal, state, foreign or local Tax payable with respect subject to the businesslimitations set forth in the prior sentence and, assets (other than Buyer's Taxes accruing from if any conflict exists between the Consent Letter and after the Closing with respect to the Acquired Assets)this Agreement, properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship shall control as between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinPurchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Momenta Pharmaceuticals Inc)
Assumption of Certain Liabilities. (a) Subject to the terms and conditions of this Agreement, except on the Closing Date, the Buyer hereby assumes only (i) the liabilities, debts, and obligations of the Business based upon events occurring, arising, and incurred after the Closing, (ii) all contracts, commitments, leases, instruments and agreements set forth on Schedule 1.2(a) hereby (the "Assigned Contracts") to the extent any liability is based upon events occurring, arising, and incurred after the Closing or as set forth on Schedule 1.4(b) and (iii) those debts, liabilities and obligations of the Business as set forth on Schedule 1.2 (the "Assumed Liabilities").
(b) Unless otherwise listed on Schedule 1.2 or relating to liabilities and obligations for which Buyer is responsible under Section 5.4 hereof, the Seller shall be solely responsible for, and shall promptly discharge, any and all liabilities, claims and obligations of Seller not included within the Assumed Liabilities. Except as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph (b) below) or in Section 1.3on Schedule 1.2), Buyer hereby assumes and agrees to payshall not assume, discharge be liable for or perform, as appropriate, the following specific liabilities and obligations incur any cost or expense respecting any obligation or liability of Seller (listed below, or any other obligation, liability or claim relating to or incurred by the "Acquired Liabilities"):
(i) the liabilities Seller and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only its operations prior to the extent of the amount reflected thereon;
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, on or after the Closing Date under or to the ContractsPurchased Assets, except that Buyer shall not assume of any kind or agree to paynature, discharge known, unknown, matured, unmatured, contingent, or perform any liabilities otherwise including liabilities, claims or obligations under any Contracts (A) that were required to be performed have or fulfilled may arise in the future from events, facts, conditions or circumstances existing on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Excluded Liabilities")) regardless of when claims respecting such Excluded Liabilities were, who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilitiesor may be asserted, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and but not Acquired Liabilities for the purposes of this Agreementlimited to:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any noticecontract or lease, claimincluding, demandwithout limitation, action any liability or proceeding based on obligation arising from a breach or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees default by Seller under any Contract; provided, however, that Seller shall not be obligated contract or lease or from a wrongful transfer thereof to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriationBuyer;
(xiii) any liability of Seller or the Business obligation to any Affiliate of Seller incurred Seller's employees or former employees arising from job related events occurring prior to the Closing Date, including, without limitation, any liabilities or obligations relating to its personnel policies, wages, salary, compensation, (other than bonuses and commissions accrued through the "Intercompany Payables"Closing Date and vacation pay, all as set forth on Schedule 1.2); or, terms and conditions of employment, employment agreements, severance pay, or pension, profit-sharing or welfare benefit plans for such employees or former employees or any Seller Employee Program (as hereinafter defined) or any liability or obligation of Seller relating to or arising out of working conditions, unfair labor practice charges, job hazards, or job related events occurring prior to the Closing Date or any liability or obligation of Seller for workers compensation or disability claims relating to events occurring prior to the Closing Date, regardless of the time of the provision of services, materials or supplies or payment for the same;
(xiiiii) any litigation, proceeding, action, or claim by any person or entity or other liability obligation of Seller prior to the Closing Date or its Affiliates whatsoeverotherwise relating to the Purchased Assets whether or not such litigation, including proceeding, claim, or obligation is pending, threatened, or asserted before, on, or after the Closing Date;
(iv) any liability or obligation of Seller arising out of or in any way relating to the ownership or operation resulting from any sale of the Acquired Assets and the Business on or products by Seller prior to the Closing Date (including any predecessor operationsliability or obligation of Seller for claims made for injury to person or damage to property, whether made in product liability, tort, breach of warranty, or otherwise);
(v) any Taxes of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including but not limited to any claims, obligations or litigation liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined, or relating unitary tax returns or arising out of any transferred liability, provided that Buyer assumes liability for all Taxes which Buyer has agreed to events or conditions occurring on or pay under Section 4.1 hereof;
(vi) any obligations of Seller arising (A) before the Closing Date with respect to the Business and (including B) at any time with respect to the rest of Seller's business other than the Business, under any Law, including, without limitation, antitrust, civil rights, health, safety, labor, discrimination, and environmental laws;
(vii) any and all liabilities or obligations of the Seller (or any predecessor owner of and or part of its business and assets) of any kind whatsoever arising under any Environmental Law ("Environmental Liabilities"). For purposes hereof, the term "Environmental Law" means any federal, state, foreign and local statutory laws, ordinances, codes, rules, regulations, approvals or requirements of any governmental authority, court orders, administrative orders, executive orders, consent decrees, injunctions, judgments, and common law pertaining to (i) health, safety, natural resources, wildlife or the environment, or (ii) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or pending litigation set forth on Schedule 2.18 hereto)handing of, regardless of when made or assertedexposure to, exceptany petroleum products or Hazardous Materials (as hereinafter defined) and all amendments, in the case of this subparagraph (xii)modifications and additions thereto, for the Acquired Liabilities as specifically and expressly set forth hereinor any similar, implementing or successor law.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except Purchaser shall assume, effective as otherwise specifically provided in this Section 1.2 (including in respect of the Retained LiabilitiesClosing, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to from and after the Closing Purchaser shall pay, perform and discharge or performwhen due, as appropriate, only the following specific liabilities, obligations and commitments of Seller (subject to Purchaser’s right to dispute such liabilities and obligations of Seller in good faith with parties to whom such obligations are owed provided such right shall not diminish Purchaser’s indemnity obligations under Article VIII) (such liability, obligations and commitments being the "Acquired “Assumed Liabilities"”):
(i) the liabilities any and all payment and performance liabilities, obligations and commitments of Seller arising in under the regular and ordinary course of the Business that are reflected Assigned Contracts whether incurred before, on the face of or after the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only and including all unpaid rebates and refunds to the extent of the amount reflected thereoncustomers;
(ii) all accounts payable and accrued liabilities and obligations of Seller that are required to be performed arising out of the operation or fulfilled, in whole or in part, on or after conduct of the Closing Date under the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or Business prior to the Closing Date or and contained in the Closing Balance Sheet (Bas defined in Section 1.05(a)), excluding outstanding uncleared checks of Seller;
(iii) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior and all Unknown Environmental Liabilities but only to the Closingextent Seller is not required to indemnify an indemnified party under Section 8.01(a)(iv); and
(iiiiv) the costsall other liabilities, up to $15,000obligations and commitments, whether known or unknown, express or implied, absolute, contingent or otherwise, arising out of the financial audit report operation or conduct of the Business for or Acquired Asset after the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) belowClosing.
(b) Buyer is Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, and regardless of any disclosure to Purchaser, Purchaser shall not assuming assume any of the following liabilities, obligations and commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained “Excluded Liabilities"”), who shall remain liable therefor in accordance with the terms each of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following which shall be considered Retained Liabilities retained and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities paid, performed and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed discharged when due by Seller or its Affiliates prior Parent (subject to the Closing, Seller’s and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except Parent’s right to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any dispute such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection good faith with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating parties to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or whom such obligations arising out of any disposition of are owed provided such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on diminish Seller’s or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"Parent’s indemnity obligations under Article VIII); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein.. The term “Excluded Liability” means:
Appears in 1 contract
Assumption of Certain Liabilities. Purchaser is not assuming any debt, liability or obligations of any of the Companies, whether known or unknown, fixed or contingent, except for the liabilities of the Companies to be paid or performed after the Closing Date under the Assumed Contracts listed in SCHEDULE 1.1(c) (athe "Assumed Contracts") Subject which are assigned by the Companies to the terms Purchaser (the "Assumed Liabilities"). Except as and conditions of to the extent otherwise expressly provided in this Agreement, except as otherwise specifically provided in this Section 1.2 (including in Purchaser does not, and shall not, assume or be deemed to assume, nor shall Purchaser discharge, be responsible for or liable with respect to any other liabilities or obligations of the Retained LiabilitiesCompanies or any other person, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):
(i) the liabilities and obligations of Seller whether arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in partprior to, on or after the Closing Date under the Contracts(collectively, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than without limitation: (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability Companies arising out of or relating to the ownership any contract or operation agreement not fully and effectively assigned to and specifically assumed by Purchaser pursuant to this Agreement; (b) any liability or obligations of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation Companies arising out of or relating to events any employee benefit (including health) plans, programs, policies or conditions occurring on other arrangements or agreements which provide the Companies' employees with benefits, including the payment of severance pay or special bonuses, if any, to terminated employees under agreements or policies not constituting Assumed Contracts, (c) any liability or obligations of the Companies arising out of any litigation, claim, arbitration or other similar proceeding relating to the Purchased Assets before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto)Date, regardless of when made whether or assertednot such litigation, exceptclaim, in arbitration or other similar proceeding is pending, threatened or asserted before, on or after the case Closing Date, (d) any liabilities and obligations of this subparagraph the Companies' relating to the Excluded Assets, (xii)e) any and all liabilities and obligations, direct or indirect, fixed or contingent, for Taxes, whether or not such Taxes are assessed prior to, on or after the Acquired Liabilities Closing date and (f) accounts payable of the Companies as specifically and expressly set forth hereinof the Closing Date.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject The Purchaser agrees to assume at the terms Closing the Assumed Liabilities and conditions of this Agreement, except as otherwise specifically provided in this Section 1.2 (including in respect of agrees to perform the Retained Liabilities, as obligations incident thereto. The assumption shall include those Options that meet the requirements set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes 6.1.26 of this Agreement on and agrees to pay, discharge or perform, as appropriate, the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):
(i) the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, on or after the Closing Date under the Contracts, except that Buyer Date. The Assumed Liabilities shall not assume include any obligation or agree to payliability arising from any default, discharge breach, misfeasance, malfeasance or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to nonfeasance by the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) . Nothing contained in this Section 2 or in any instrument or assumption executed by the costsPurchaser at the Closing shall be deemed to release or relieve the Seller from its respective representations, up to $15,000warranties, covenants and agreements contained in this Agreement or any certificate, schedule, instrument or document executed pursuant hereto or in connection herewith, including, without limitation, the obligations of the financial audit report of Seller to indemnify the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor Purchaser in accordance with the terms provisions of this Agreement. Seller The Assumed Liabilities shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) include any liability or obligation of the Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership (a) any actual or operation alleged tortious conduct of the Acquired Assets and Seller or any of its employees or agents, (b) except as set forth in Section 3.3, any product liability claim related to a home delivered to a home buyer prior to Closing, (c) any claim for breach of warranty or contract by the Business Seller except as provided in Section 3.3, (d) any claim predicated on strict liability, (e) the violation of any law, ordinance or regulation in effect prior to the Closing, (f) any business or business activities of the Seller which are not part of the Seller's Business, (g) any liability for expenses or taxes, if any, in connection with, resulting from or arising out of this Agreement or the transactions contemplated hereby, (h) any liability of the Seller for any federal, state or local taxes of any kind or character (other than taxes assumed under this Agreement), (i) any liability of the Seller under or arising by reason of this Agreement, or (j) any liability for any amounts payable under the Contracts or under any other agreement to which the Seller is a party for the period prior to the Closing Date (including except as shown on the Accrual Schedule. In particular, Seller shall pay and remain solely responsible for all trade payables under the Contracts or otherwise which apply to units closed prior to the Closing Date except as shown on the Accrual Schedule. The Seller hereby indemnifies and holds harmless the Purchaser against any predecessor operations)losses, including any claimscosts, obligations damages, fees arising or litigation arising out of or relating related to events or conditions occurring the period on or before Closing or other amounts payable for any liabilities or obligations of the Seller relating to the Included Assets arising or related to the period on or before Closing other than the Assumed Liabilities. The indemnification contained in this section shall be subject to the provisions of Section 14. The obligations of the Seller pursuant to this Section shall survive the Closing Date (including and the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of transactions contemplated by this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinAgreement.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except Buyer shall assume, effective as otherwise specifically provided in this Section 1.2 (including in respect of the Retained LiabilitiesClosing, as set forth in paragraph (b) below) or in Section 1.3, and from and after the Closing Buyer hereby assumes and agrees to shall pay, discharge or performperform and discharge, as appropriate, all of the following specific obligations and liabilities and obligations of Seller the Seller, whether express or implied, liquidated, absolute, accrued, matured, unmatured, contingent or otherwise, known or unknown (the "Acquired “Assumed Liabilities"”):
(i) the all liabilities and obligations arising out of Seller arising in or relating to the regular and ordinary course ownership or use of the Business that are reflected Acquired Assets, in each case relating to or arising from any fact, circumstance, occurrence, condition, act or omission existing (x) on the face of or occurring prior to the Closing Net Asset Statement (excluding any notes or schedules thereto) except, in accordance with Section 1.6each case, but only to the extent arising out of or relating to (A) any breach by Seller or any of its Subsidiaries of, or nonperformance by Seller or any of its Subsidiaries under, any Contract prior to the amount reflected thereonClosing, or (B) any violation of Law by Seller or any of its Subsidiaries prior to the Closing) or (y) following the Closing, other than due to a breach by Seller under this Agreement;
(ii) all liabilities and obligations for Taxes (x) related to the Acquired Assets or the operation of Seller the Acquired Assets that are required attributable to be performed any taxable period (or fulfilled, in whole or in part, on or portion thereof) beginning after the Closing Date under the Contracts, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (By) that arise out which are the responsibility of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the ClosingBuyer under Section 5.07; and
(iii) any other liabilities or obligations which the costs, up Buyer specifically assumes pursuant to $15,000, the terms of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) belowthis Agreement.
(b) Notwithstanding any other provision of this Agreement or any Ancillary Agreement to the contrary, and regardless of any disclosure to Buyer, Buyer is shall not assuming assume or be liable for any liabilitiesliability, commitments obligation or obligations commitment of Seller or any of its Subsidiaries of any kind (whether express or implied, liquidated, absolute, accrued, matured, unmatured, contingent or absoluteotherwise (including any liability, obligation or commitment based on any theory of successor liability) or known or unknown and whether or not determinable as of unknown) other than the Closing) of Seller except for the Acquired Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained “Excluded Liabilities"”), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained The Excluded Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following which shall be considered Retained Liabilities retained and not Acquired Liabilities for paid, performed and discharged when due by Seller, include the purposes of this Agreementfollowing:
(i) all liabilities and obligations any liability, obligation or commitment of Seller or any of its Affiliates under Subsidiaries that relates to, or that arises from, any agreementsExcluded Asset, contracts, leases or licenses that arises from the distribution to which or ownership by Seller or any such Affiliate of its Subsidiaries of any Excluded Asset, or that is a party on associated with the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face realization of the Closing Net Asset Statement (excluding benefits of any notes Excluded Asset, whether accruing prior to, at or schedules thereto)after the Closing;
(ii) all obligations any liability, obligation or commitment of Seller or any of its Subsidiaries relating to or arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed from any actual or alleged breach by Seller or any of its Affiliates Subsidiaries of, or nonperformance by Seller or any of its Subsidiaries under, any Contract prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(ivA) any federalTaxes of Seller, state, foreign or local Tax (as defined in Section 2.12(b)B) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect related to the Acquired Assets), properties Assets that were incurred in or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed are attributable to any employees, former employees, agents taxable period (or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (Aportion thereof) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring ending on or before the Closing Date, (C) any Taxes of another person for which Seller is liable, including Taxes for which Seller is liable by reason of Treasury Regulations Section 1.1502-6 (or any comparable or similar provision of U.S. federal, state, local, Singapore or other Law), being a transferee or successor, any contractual obligation or otherwise, and (D) any income, withholding, transfer, sales, use or other Taxes arising in connection with the consummation of the transactions contemplated by this Agreement (including any obligation income or withholding Taxes arising as a result of the transfer by Seller to grant options or pay severance, retention or "stay" bonuses, or similar arrangementsBuyer of the Acquired Assets);
(viiv) all liabilities any liability, obligation or commitment for fees and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained expenses incurred by Seller or any of its AffiliatesSubsidiaries (including the fees and expenses of legal counsel, and fees and expenses of any "employee welfare benefit plan" (as defined in Section 3(1) accountant, auditor, broker, financial advisor or consultant retained by or on behalf of ERISA) maintained by Seller or any of its Subsidiaries) arising from or in connection with this Agreement or the Ancillary Agreements or the transactions contemplated hereby or thereby;
(v) any liability, obligation or commitment of Seller or any of its Subsidiaries to any of their respective Affiliates;
(vi) any Indebtedness of Seller or any of its Subsidiaries;
(vii) any liability, and obligation or commitment of Seller or any other written of its Subsidiaries relating to (A) the employment or oral plantermination of employment (including termination in connection with the transactions contemplated hereby) with Seller or any of its Subsidiaries of any current or former director, agreement officer, employee, contractor or arrangement maintained by consultant of Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(viiB) any liability Benefit Plan or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;Benefit Agreement; and
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer Controlled Group Liability with respect to Seller or any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;Commonly Controlled Entity.
(xic) any liability of Seller or the Business shall take all actions necessary to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of ensure that Buyer shall acquire the Acquired Assets free and the Business on or prior to the Closing Date (including any predecessor operations), including any claimsclear of all liabilities, obligations or litigation arising out and commitments of or relating to events or conditions occurring on or before Seller and its Subsidiaries, other than the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto)Assumed Liabilities, regardless and free and clear of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinall Liens.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject With the exception of those liabilities expressly assumed by Buyer in accordance with the provisions of subparagraph 3(b) (the "Liabilities"), Buyer does not assume and shall in no event be liable for any debts, liabilities or obligations of Seller, whether fixed or contingent, known or unknown, liquidated or unliquidated, secured or unsecured, or otherwise. Without limiting the foregoing, Buyer does not assume (i) any liability for Taxes (as hereinafter defined) payable for any periods prior to and including the Closing Date, (ii) any long term or bank debt, (iii) except and to the terms extent reflected on the Closing Balance Sheet (as hereinafter defined), any liability or obligation to any employee, director, officer or Stockholders, including without limitation, any liability in connection with any Employee Benefit Plan (as hereinafter defined), (iv) any liability or obligation for brokerage commissions, finders' fees or professional services of any kind incurred in connection with the negotiation and conditions execution of this AgreementAgreement and the consummation of the transactions contemplated hereby, except and (v) any liability or obligation arising as otherwise specifically provided a result of, or which existence constitutes, a breach of any of Seller's or Stockholders' representations or warranties contained in this Section 1.2 (including in respect of the Retained Liabilities, as set forth in paragraph Agreement.
(b) below) or in Section 1.3, Buyer hereby assumes and agrees to pay, discharge or perform, as appropriate, only the following specific liabilities and obligations of Seller (the "Acquired Liabilities"):Seller:
(i) the liabilities and obligations of Seller arising in the regular from and ordinary course of the Business that are reflected on the face of after the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to Date under the extent of the amount reflected thereon;Assumed Contracts,
(ii) all liabilities and obligations of Seller that are required to be performed or fulfilled, in whole or in part, specifically reflected on or after the Closing Date under the ContractsBalance Sheet, except that Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such all other liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth listed on Schedule 2.18 hereto3(b)(iii), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject Buyer shall not assume any Liabilities of Seller except for those Liabilities which Buyer expressly assumes pursuant to this Section 2.2(a). On the terms and subject to the conditions of this Agreement, except Buyer shall, on the Closing Date, assume the Liabilities of Seller as otherwise specifically provided in this Section 1.2 (including in respect of the Retained Closing Date listed on Schedule 2.2(a) (the “Assumed Liabilities”). Notwithstanding any on Schedule 2.2(a) to the contrary, as set forth in paragraph Buyer is not assuming any liabilities arising from periods prior to the Closing Date.
(b) below) Seller shall retain and be responsible for paying, performing and discharging when due, and Buyer shall not assume or in Section 1.3have any responsibility for, Buyer hereby assumes and agrees to pay, discharge or perform, all Liabilities of Seller as appropriateof the Closing Date other than the Assumed Liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, without limitation, any of the following specific liabilities and obligations of Seller Liabilities (other than the "Acquired Assumed Liabilities"):
(i) any Liability arising from or related to the liabilities and obligations operations of Seller Seller, whenever arising in or incurred, or the regular and ordinary course ownership of the Business that are reflected on Products and the face of Purchased Assets by Seller through the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereonDate;
(ii) all liabilities any Employment Liability;
(iii) claims (including any threatened claims) for death, personal injury, property damage or consequential, punitive, or other damages relating to or arising out of any business conducted by Seller;
(iv) the violation or alleged violation of any law, including but not limited to, laws relating to civil rights, health, safety, labor, discrimination, and obligations protection of the environment;
(v) claims (including any threatened claims) of creditors of Seller;
(vi) claims (including any threatened claims) relating to the disposal or arrangement for disposal by Seller of any hazardous substance at any site, location or facility (whether or not owned or leased by Seller);
(vii) any obligation of Seller that are required to be performed indemnify any Person;
(viii) any Taxes of Seller, including any liability for Taxes arising from or fulfilled, in whole attributable to Seller’s operation of the Business or in part, on use or after ownership of the Closing Date under the Contracts, except that Buyer shall not assume Purchased Assets for all taxable periods (or agree to pay, discharge or perform any liabilities or obligations under any Contracts (Aportions thereof) that were required to be performed or fulfilled ending on or prior to the Closing Date or (B) that arise out of Date, and including any breach or default (including for Transfer Taxes and Straddle Period Taxes attributable to Seller pursuant to this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the ClosingAgreement; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(viiix) any liability or obligation of Seller or its Affiliates arising or for costs and expenses incurred in connection with the negotiationthis Agreement, preparation and execution of this Agreement and the transactions contemplated hereby, hereby and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operations;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;
(xi) any liability of Seller or the Business to any Affiliate of Seller incurred prior to the Closing (the "Intercompany Payables"); or
(xii) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth hereinthereby.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Subject to Upon the terms and subject to the conditions of this Agreement, except as otherwise specifically provided Purchaser and the Cytec Parties shall execute and deliver at the Closing an Assumption Agreement, in this Section 1.2 the form of Exhibit M (including in respect of the Retained Liabilities"Assumption Agreement"), as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes pursuant to which Purchaser shall assume and agrees agree to pay, perform and discharge when due, all liabilities or performobligations whatsoever, as appropriatewhether arising before or after the Closing and whether known or unknown, fixed or contingent, other than the following specific liabilities and obligations Excluded Liabilities, that relate primarily to or arise primarily out of Seller the operation of the Business (the "Acquired Assumed Liabilities"):), including:
(i) all obligations and liabilities of Parent (which term, for purposes of this Section 2.03(a), shall exclude Cyanamid) or Seller under the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereonAcquired Contracts;
(ii) all Business Accounts Payable in existence as of the Closing Date;
(iii) all obligations and liabilities in respect of any and all acrylic fiber or activator sold by the Business at any time, including obligations and liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability and other claims;
(iv) all obligations and liabilities of Parent or Seller that are required in respect of amounts paid by any customer of the Business in excess of amounts owed by such customer;
(v) all obligations and liabilities arising as a result of the ownership or occupancy of Parent or Seller, or the operation of the activities conducted at, the Santa ▇▇▇▇ Facility or any Leased Property, other than the Excluded Real Property, including all obligations and liabilities relating to be performed personal injury or fulfilledEnvironmental Laws, in whole other than Off-Site Environmental Liabilities and Escambia Bay Liabilities;
(vi) all obligations and liabilities of Parent or Seller to or in partrespect of any current or former employee of the Business, other than any obligations or liabilities arising under or in connection with the Excluded Contracts;
(vii) all the obligations and liabilities arising under or in connection with the Benefit Plans to the extent assumed by Purchaser under Section 5.05;
(viii) any obligation or liability for Taxes attributable to the Business or relating to the Acquired Assets, other than Taxes based on gross receipts, income or after the Closing Date under the Contracts, except that Buyer shall not assume profits for any periods (or agree to pay, discharge or perform any liabilities or obligations under any Contracts (Aportions thereof) that were required to be performed or fulfilled ending on or prior to the Closing Date or (B) and other than Taxes that arise out are the responsibility of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any failure the Cytec Parties pursuant to perform any agreement, contract, commitment or lease in accordance with its terms prior to the ClosingSection 5.07; and
(iiiix) the costssubject to Section 2.02(c), up to $15,000, of the financial audit report all obligations and liabilities arising out of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition which pertain to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Seller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on the Closing Date, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto);
(ii) all obligations arising prior to the Closing under the Contracts that are required under the terms of the applicable Contract to be performed by Seller or its Affiliates prior to the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) except to the extent of Product warranties covered by Section 1.2(a)(i) above, any product liability, breach of contract, product warranty, product return or similar claim, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made or alleged to have been made or which is imposed or asserted to be imposed by operation of law (including by reason of any "strict liability" or related theory of tort law), in connection with any product licensed, leased or sold by, or any service performed by or on behalf of, Seller or its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any federal, state, foreign or local Tax (as defined in Section 2.12(b)) (A), including any federal, state, foreign or local Tax payable with respect to the business, assets (other than Buyer's Taxes accruing from and after the Closing with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) incident to or arising as a consequence of the negotiation or consummation by Seller or its Affiliates of this Agreement and the transactions contemplated hereby;
(v) any liability or obligation with respect to compensation of any nature owed to any employees, former employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing Date, that (A) arises out of or relates to the employment or service provider relationship between Seller or its Affiliates and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any other written or oral plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or similar arrangement, any liabilities under any letter of credit and any liabilities under any lease of any property (whether real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a capital lease;
(ix) except as otherwise expressly set forth herein, any liability or obligation of Seller or its Affiliates relating to any business, division or operations not constituting the Business, including any business, division or operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of any disposition of such business, division or operationsBusiness Intellectual Property;
(x) any liability or obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or relating to any actual or alleged infringement, dilution, violation or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party including any such notice, claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any ContractSterling Specified Exposure Liability; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to any Retained Liability described in this Section 1.2(b)(x) unless Seller had knowledge on or before the Closing of any such alleged infringement, dilution, violation or misappropriation;and
(xi) any liability of Seller Sterling Escambia Bay Liability. Notwithstanding anything contained herein or in the Business to any Affiliate of Seller incurred prior Assumption Agreement to the Closing (contrary, Purchaser shall not be responsible for, and the "Intercompany Payables"); orAssumed Liabilities shall not include, the Excluded Liabilities, all of which the Cytec Parties agree to retain, pay, perform, fulfill, discharge and remain responsible for. Nothing in this Section 2.03(a) or in any Ancillary Agreement is intended to negate or impair the indemnification obligations of the Cytec Parties under Article VIII or elsewhere in this Agreement.
(xiib) any other liability of Seller or its Affiliates whatsoever, including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of when made or asserted, except, in the case of this subparagraph (xii), for the Acquired Liabilities as specifically and expressly set forth herein.The term "Excluded Liabilities" shall mean:
Appears in 1 contract