Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing, Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Seller (the "ASSUMED LIABILITIES"), other than any Excluded Liabilities: (i) all liabilities, obligations and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") to the extent such liabilities, obligations and commitments relate to the period after the Closing Date; (ii) all accounts payable and accruals to the extent included in Closing Working Capital (as defined in Section 1.05(a)); (iii) any liability, obligation or commitment for Taxes (as defined in Section 3.12) relating to the operation or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Date; (iv) all liabilities, obligations and commitments of Seller, relating to or arising out of the operation of the Business or any Acquired Asset by Purchaser after the Closing; (v) all liabilities, obligations and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring on or prior to the Closing Date, but only if such liabilities, obligations and commitments and related expenses (i) relate to or arise out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04; (vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCA; and (vii) any liabilities or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated hereby. (b) Notwithstanding Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect to, and Seller shall retain, pay, perform and discharge when due, all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" means:
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of At the Closing, AAC shall assume and from and after the Closing, Purchaser shall payagree to pay when due, perform and discharge when duein accordance with the terms thereof, and indemnify and hold CPI and ILCT harmless from, all of the following liabilities, obligations and commitments of Seller CPI (i) that are shown on the Projected Balance Sheet, (ii) that are disclosed in any Schedule attached to this Agreement, (iii) that arise after the Closing in connection with the Assets, including without limitation, contracts set forth in the Material Contracts List, (iv) that arise after March 29, 1997 in the ordinary course of CPI's Business, and (v) that is accrued vacation to CPI employees not to exceed $100,000 in the aggregate (collectively, the "ASSUMED LIABILITIES"), other than any Excluded Liabilities:
(i) all liabilities, obligations and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") to the extent such liabilities, obligations and commitments relate to the period after the Closing Date;
(ii) all accounts payable and accruals to the extent included in Closing Working Capital (as defined in Section 1.05(a));
(iii) any liability, obligation or commitment for Taxes (as defined in Section 3.12) relating to the operation or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Date;
(iv) all liabilities, obligations and commitments of Seller, relating to or arising out of the operation of the Business or any Acquired Asset by Purchaser after the Closing;
(v) all liabilities, obligations and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring on or prior to the Closing Date, but only if such liabilities, obligations and commitments and related expenses (i) relate to or arise out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCA; and
(vii) any liabilities or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated hereby.
(b) Notwithstanding the foregoing provisions of Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreement2.4(a), Purchaser AAC shall not assume or be agree to perform, pay or discharge, and CPI shall remain liable for, all obligations, liabilities and commitments, fixed or responsible contingent, of CPI other than the Assumed Liabilities. Without limiting the foregoing, the Assumed Liabilities shall not include (i) any tax liabilities that are not disclosed in any Schedule attached to this Agreement relating to CPI's operations prior to the Closing or the transactions contemplated by this Agreement, (ii) costs incurred by ILCT or CPI in connection with the transactions contemplated hereby, (iii) liabilities with respect toto judgments or pending or threatened litigation or causes of action which occur prior to Closing (other than warranty claims), (iv) any broker's or finder's fees or commission and the fees of CPI and ILCT's legal counsel in connection with this transaction incurred by CPI or ILCT, (v) any and all debt due to ILCT, employees or affiliates of CPI, including sums due employees by CPI arising out of CPI's health insurance programs that is not disclosed in any Schedule attached to this Agreement, and Seller (vi) obligations or liabilities arising from any warranties, express or implied, with respect to any products shipped prior to Closing in excess of any warranty reserves set forth in the Final Balance Sheet. AAC shall retain, pay, perform and discharge when due, assume all Excluded Liabilities. To claims for product liability relating to products sold by CPI accruing on or after the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" means:Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Applied Science & Technology Inc)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing, Closing Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Seller Sellers (the "ASSUMED LIABILITIESAssumed Liabilities"), other than any Excluded Liabilities:
(i) all liabilities, obligations and commitments of Seller Sellers under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") Assigned Contracts, except obligations, liabilities or obligations arising out of any actual or alleged breach on or prior to the extent such liabilitiesClosing by Sellers of, obligations and commitments relate or nonperformance on or prior to the period after the Closing Dateby Sellers under, any Assigned Contract;
(ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior to and accruals to following the extent included in Closing Working Capital (as defined in Section 1.05(a))Closing;
(iii) any liability, obligation or commitment for Taxes (as defined in Section 3.12) relating to the operation or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Dateall off-balance sheet liabilities listed on Schedule 1.03(a)(iii);
(iv) the Working Capital Liabilities; and
(v) all other liabilities, obligations and commitments of Seller, relating to or arising primarily out of the operation or conduct of the Business or any Acquired Asset by Purchaser arising after the Closing;
(v) all liabilitiesClosing Date, obligations whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, 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, but only if such liabilities, obligations and commitments and related expenses (i) relate to or arise out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCA; and
(vii) any liabilities or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated hereby.
(b) Notwithstanding Section 1.03(a) ), or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect toany of the following liabilities, obligations and Seller shall retain, pay, perform and discharge when duecommitments of Sellers (the "Excluded Liabilities"), all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined of which shall be retained and paid, performed and discharged when due by Sellers or 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 the Closing;
(iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing;
(v) any liability, obligation or commitment of Sellers to the extent it relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and an Excluded Liability under any indebtedness for borrowed money or guarantees thereof;
(vii) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 1.03(b3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the 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), it 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 applicable, and Purchaser (but Purchaser shall not be deemed for all purposes to be an Excluded Liability have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and not an Assumed Liability the number of days of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of 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 other 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 included 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 salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Working Capital. The term 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;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv).
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities" means:, and free and clear of all Liens, other than Permitted Liens.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon Subject to the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective except as otherwise specifically provided in this Section 1.2 (including in respect of the ClosingRetained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and from and after the Closing, Purchaser shall agrees to pay, perform and discharge when dueor perform, all as appropriate, the following liabilities, specific liabilities and obligations and commitments of Seller (the "ASSUMED LIABILITIESAcquired 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"), other than who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Excluded LiabilitiesRetained 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 liabilitiesliabilities 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 commitments 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 assigned contracts constituting an Acquired Asset Employee Retirement Income Security Act of 1974, as amended (the "ASSIGNED CONTRACTSERISA")) 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 the extent 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, liabilities and obligations and commitments relate to the period after which arise on or before the Closing Date;
(iivii) all accounts payable any liability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, preparation and accruals to execution of this Agreement and the extent included in Closing Working Capital (as defined in Section 1.05(a))transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(iiiviii) any liabilityindebtedness 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 commitment for Taxes 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;
(as defined 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 3.121.2(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 or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Date;
(iv) all liabilities, obligations and commitments of Seller, relating to or arising out of the operation of the Business or any Acquired Asset by Purchaser after the Closing;
(v) all liabilities, obligations and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring on or prior to the Closing DateDate (including any predecessor operations), but only if such liabilitiesincluding any claims, obligations and commitments and related expenses (i) relate to or arise litigation arising out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred relating to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCA; and
(vii) any liabilities events or obligations relating to, based conditions occurring on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates as of before the Closing Date whose principal place (including the threatened or pending litigation set forth on Schedule 2.18 hereto), regardless of employment is one of when made or asserted, except, in the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated hereby.
(b) Notwithstanding Section 1.03(a) or any other provision case of this Agreement or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect to, and Seller shall retain, pay, perform and discharge when due, all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(bsubparagraph (xii), it shall be deemed for all purposes to be an Excluded Liability the Acquired Liabilities as specifically and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" means:expressly set forth herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Comtech Telecommunications Corp /De/)
Assumption of Certain Liabilities. The Purchaser agrees to assume at the Closing the Assumed Liabilities and agrees to perform the obligations incident thereto. The Assumed Liabilities shall not include any obligation or liability arising from any default, breach, misfeasance, malfeasance or nonfeasance by the Seller prior to the Closing. Nothing contained in this Section 2 or in any instrument or assumption executed by the Purchaser at the Closing shall be deemed to release or relieve the Seller from its respective representations, warranties, 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 Seller to indemnify the Purchaser in accordance with the provisions of this Agreement. The Assumed Liabilities shall not include any liability or obligation of the Seller arising out of or relating to (a) Upon any actual or alleged tortious conduct of the terms and subject 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 Seller, (d) any claim predicated on strict liability, (e) the violation by Seller of any law, ordinance or regulation in effect prior to the conditions 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 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 shall assumeagainst any losses, effective as costs, damages, or fees arising or related to the period on or before Closing or other amounts payable for any liabilities or obligations of the ClosingSeller 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, and from and costs, damages, or fees arising or relating to the period on or after the Closing, Closing or other amounts payable for any liabilities or obligations of the Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Seller (the "ASSUMED LIABILITIES"), other than any Excluded Liabilities:
(i) all liabilities, obligations and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") relating to the extent such liabilities, obligations and commitments relate Included Assets arising or relating to the period after the Closing Date;
(ii) all accounts payable and accruals Closing, including the Assumed Liabilities. The indemnifications contained in this Section shall be subject to the extent included in Closing Working Capital (as defined in provisions of Section 1.05(a));
(iii) any liability, obligation or commitment for Taxes (as defined in Section 3.12) relating to the operation or ownership 14. The obligations of the Acquired Assets for any Tax period (or portion thereof) beginning after Seller and the Purchaser pursuant to this Section shall survive the Closing Date;
(iv) all liabilities, obligations and commitments of Seller, relating to or arising out of the operation of the Business or any Acquired Asset by Purchaser after the Closing;
(v) all liabilities, obligations and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring on or prior to the Closing Date, but only if such liabilities, obligations and commitments and related expenses (i) relate to or arise out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCA; and
(vii) any liabilities or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated herebyby this Agreement.
(b) Notwithstanding Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect to, and Seller shall retain, pay, perform and discharge when due, all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" means:
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Assets (Calton Inc)
Assumption of Certain Liabilities. (a) Upon With the terms and subject to exception of those liabilities expressly assumed by Buyer in accordance with the conditions provisions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing, Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Seller subparagraph 3(b) (the "ASSUMED LIABILITIESLiabilities"), other than Buyer does not assume and shall in no event be liable for any Excluded Liabilities:
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) all liabilities, obligations any liability for Taxes (as hereinafter defined) payable for any periods prior to and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") to the extent such liabilities, obligations and commitments relate to the period after including the Closing Date;
, (ii) all accounts payable and accruals to the extent included in Closing Working Capital (as defined in Section 1.05(a));
any long term or bank debt, (iii) any liabilityliability or obligation to any employee, obligation director, officer or commitment for Taxes stockholder of Seller, including without limitation, any liability in connection with any Employee Benefit Plan (as defined in Section 3.12) relating to the operation or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Date;
hereinafter defined), (iv) all liabilitiesany trade payables, obligations and commitments of Seller, relating to or arising out of the operation of the Business or any Acquired Asset by Purchaser after the Closing;
(v) all liabilitiesany liability or obligation for brokerage commissions, obligations finders' fees or professional services of any kind incurred in connection with the negotiation and commitments execution of Seller based uponthis Agreement and the consummation of the transactions contemplated hereby, (vi) any liability or obligation arising out of under any arbitration or resulting litigation proceeding, whether or not disclosed in this Agreement, (vii) any liability or obligation arising from any fact, circumstance, occurrence, condition, act or omission existing or events occurring on or prior to the Closing Date, but only if such liabilitieswhether or not disclosed in this Agreement, obligations including, without limitation, any liability or obligation arising from (A) environmental matters, (B) the infringement by Seller upon any 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 commitments (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 related expenses (i) relate to or arise out each of the Business or any Acquired Asset in the ordinary course of business Principals, jointly and consistent with the representationsseverally, warrantiesagree to indemnify Buyer and ORC and their respective officers, covenantsdirectors and agents, obligations and agreements set forth in this Agreement and (ii) are of a nature from, against and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F respect of the SARCA; and
(vii) 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 reasonable costs and attorney's fees, shall be subject to, based 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 of Seller:
(i) liabilities and obligations arising from and after the Closing Date under the Seller Agreements,
(ii) all obligations to complete open customer sales orders reflected on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates Seller's books and records as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated hereby.Date, and
(biii) Notwithstanding Section 1.03(a) the obligation to maintain $125,000 of insurance on the life of ▇▇▇▇▇▇▇ Statis while he is employed by Buyer or any other provision of this Agreement its successor or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect to, and Seller shall retain, pay, perform and discharge when due, all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" means:assignee.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser and the Cytec Parties shall assumeexecute and deliver at the Closing an Assumption Agreement, effective as in the form of Exhibit M (the Closing"Assumption Agreement"), and from and after the Closing, pursuant to which Purchaser shall assume and agree to pay, perform and discharge when due, all liabilities or obligations whatsoever, whether arising before or after the following liabilitiesClosing and whether known or unknown, obligations and commitments of Seller (the "ASSUMED LIABILITIES")fixed or contingent, other than any the Excluded Liabilities:
(i) all liabilities, obligations and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") to the extent such liabilities, obligations and commitments that relate to the period after the Closing Date;
(ii) all accounts payable and accruals to the extent included in Closing Working Capital (as defined in Section 1.05(a));
(iii) any liability, obligation or commitment for Taxes (as defined in Section 3.12) relating to the operation or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Date;
(iv) all liabilities, obligations and commitments of Seller, relating primarily to or arising arise primarily out of the operation of the Business (the "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 Acquired Contracts;
(ii) all Business Accounts Payable in existence as of the Closing Date;
(iii) all obligations and liabilities in respect of any Acquired Asset and all acrylic fiber or activator sold by Purchaser after the ClosingBusiness 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 in respect of amounts paid by any customer of the Business in excess of amounts owed by such customer;
(v) all liabilities, obligations and commitments 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 personal injury or Environmental Laws, other than Off-Site Environmental Liabilities and Escambia Bay Liabilities;
(vi) all obligations and liabilities of Parent or Seller to or in respect 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 uponon gross receipts, arising out of income or resulting from profits for any fact, circumstance, occurrence, condition, act periods (or omission existing or occurring portions thereof) ending on or prior to the Closing DateDate and other than Taxes that are the responsibility of any of the Cytec Parties pursuant to Section 5.07; and
(ix) subject to Section 2.02(c), but only if such liabilities, all obligations and commitments and related expenses (i) relate to or arise liabilities arising out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred which pertain to in Section 3.04Business Intellectual Property;
(vix) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCAany Sterling Specified Exposure Liability; and
(viixi) any liabilities Sterling Escambia Bay Liability. Notwithstanding anything contained herein or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN ActAssumption Agreement to the contrary, Purchaser shall not be responsible for, and the Assumed 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 "employment loss," as defined in Ancillary Agreement is intended to negate or impair the WARN Act, which any employee of Seller or any of its affiliates as indemnification obligations of the Closing Date whose principal place of employment is one of the Business Properties may suffer Cytec Parties under Article VIII or may be deemed to suffer as a consequence of the transactions contemplated herebyelsewhere in this Agreement.
(b) Notwithstanding Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect to, and Seller shall retain, pay, perform and discharge when due, all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" meansshall mean:
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing, Closing Purchaser shall pay, perform and discharge when due, all only the following liabilities, obligations and commitments of Seller (the "ASSUMED LIABILITIES"“Assumed Liabilities”), other than any except to the extent constituting Excluded Liabilities:
(i) all liabilities, obligations and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") Assigned Contracts and Transferred Permits to the extent such liabilities, obligations and commitments relate to arise from the period operation or conduct of the Business after the Closing DateClosing;
(ii) all accounts payable liabilities, obligations and accruals commitments to the extent included in Closing Working Capital (as defined in Section 1.05(a))arising from the ownership of the Acquired Assets or the operation of the Business after the Closing;
(iii) any liabilityall liabilities, obligation or commitment for Taxes 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 defined in Section 3.12) relating to set forth on the operation or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the final and binding Closing DateStatement);
(iv) all liabilities, obligations and commitments of Seller, relating to or for Taxes arising out of or relating to the Acquired Assets or the operation or conduct of the Business or Business, in each case, for any Acquired Asset by Purchaser after the Closing;Post-Closing Tax Period; and
(v) all liabilities, obligations and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring on or prior with respect to the Closing Date, but only if such liabilities, obligations and commitments and related expenses (i) relate Transferred Employees relating to employment or arise out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in employee benefits that Purchaser has specifically agreed to assume pursuant to this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"“Covered Employee Liabilities”), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCA; and
(vii) any liabilities or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated hereby.
(b) Notwithstanding anything in Section 1.03(a) or any other provision of this Agreement or any Ancillary AgreementAgreement to the contrary, and regardless of any disclosure to Purchaser, Purchaser shall not assume or be liable for any liabilities, commitments or responsible 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) 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 toto any period prior to the Closing; Table of Contents
(iii) any liability, and 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 shall retain, pay, perform and discharge when due, all Excluded Liabilities. To or any of their affiliates of any Applicable Law prior to the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(aClosing;
(iv) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except any “current liability” of Seller to the extent included not expressly identified and quantified on the final and binding Closing Statement and taken into account in the Closing Working Capital. The term "Capital Amount (as set forth on the final and binding Closing Statement);
(v) any liability, obligation or commitment of Seller that relates to, or that arises from, any Excluded Liabilities" means: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 the Acquired Assets or the operation or conduct of the Business, in each case, for any Pre-Closing Tax Period or (B) of Seller for any taxable period, except as provided in Section 1.03(a)(iv) (provided that for purposes of this clause (vi), 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 shall be allocated between the 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 and the number of days during such taxable period elapsed after the Closing Date);
(vii) any liability, obligation 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 Ancillary Agreements, the Acquisition and the other transactions contemplated hereby and thereby (“Transfer Taxes”);
(viii) any liability, obligation or commitment, including any On-Site Environmental Liability, arising out of (A) any actual or alleged violation of any Environmental Law prior to the Closing, (B) any Release of Hazardous Materials at any location prior to the Closing, or (C) any Environmental Claim arising from, 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 operation of the Business, the Business Property or any other property currently or formerly owned, leased or operated in connection with the Business;
Appears in 1 contract
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") Upon which are assigned by the terms and subject Company to the conditions of Purchaser (the "Assumed Liabilities"). Except as and to the extent otherwise expressly provided in this Agreement, Purchaser does not, and shall not, assume or be deemed to assume, effective as nor shall Purchaser discharge, be responsible for or liable with respect to any other liabilities or obligations of the ClosingCompany or any other person, and from and whether arising prior to, on or after the ClosingClosing Date (collectively, Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Seller (the "ASSUMED LIABILITIESRetained Liabilities"), other than any Excluded Liabilitiesincluding without limitation:
(ia) all liabilitiesany liability or obligations of the Company arising out of or 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 Shareholders or the Company to ▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇ arising out of the working relationship between the Company and commitments each such individual;
(b) any liability or obligations of Seller the Company arising out of or relating to any employee benefit (including health) plans, programs, policies or 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 assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") Company arising out of any litigation, claim, arbitration or other similar proceeding relating to the extent Purchased Assets before the Closing Date, regardless of whether or not such liabilitieslitigation, obligations and commitments relate to the period claim, arbitration or other similar proceeding is pending, threatened or asserted before, on or after the Closing Date;
(iid) all accounts payable any liabilities and accruals obligations of the Company relating to the extent included in Closing Working Capital (as defined in Section 1.05(a))Excluded Assets, including without limitation all automobile leases and automobile loans;
(iiie) any liabilityand all liabilities and obligations, obligation direct or commitment indirect, fixed or contingent, for Taxes, whether or not such Taxes (as defined in Section 3.12) relating to the operation are assessed prior to, on or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Date;
(ivf) all liabilities, obligations and commitments of Seller, relating to or arising out accounts payable of the operation Company and credit balances of accounts receivable of the Business or any Acquired Asset by Purchaser after the Closing;
(v) all liabilities, obligations and commitments Company as of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring on or prior to the Closing Date, but only if such liabilitiesincluding without limitation, obligations all Company, Shareholder and commitments Individual Seller credit card balances, any amounts due Valley Independent Bank, and related expenses (i) relate to or arise out miscellaneous payables other than a pro rata share of the Business or any Acquired Asset rent and utilities for the Company's building for the month in which the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCAClosing Date occurs; and
(viig) any liabilities or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in obligation of the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or Company to any of its affiliates as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated hereby.
(b) Notwithstanding Section 1.03(atrust account(s) or any other provision obligaitons of this Agreement or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect to, and Seller shall retain, pay, perform and discharge when due, all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(asuch trust account(s) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" means:any beneficiary thereof.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon Subject to the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective except as otherwise specifically provided in this Section 2.3 (including in respect of the ClosingRetained Liabilities, as set forth in Section 2.4 below), on the Closing Date, the Buyer will assume and from and after the Closing, Purchaser shall agree to pay, perform and discharge when dueor perform, all as appropriate, the following liabilities, specific liabilities and obligations and commitments of Seller the Sellers (the "ASSUMED LIABILITIES"), other than in no event to include any Excluded Liabilities:
obligations or liabilities which (i) all liabilities, obligations and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") to the extent such liabilities, obligations and commitments relate to the period after the Closing Date;
(ii) all accounts payable and accruals to the extent included in Closing Working Capital (as defined in Section 1.05(a));
(iii) any liabilitybreach of any representation, obligation warranty, covenant or commitment for Taxes (as defined in Section 3.12) relating to the operation or ownership of the Acquired Assets for any Tax period (or portion thereof) beginning after the Closing Date;
(iv) all liabilities, obligations and commitments of Seller, relating to or arising out of the operation of the Business or any Acquired Asset by Purchaser after the Closing;
(v) all liabilities, obligations and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring agreement which arose on or prior to the Closing Date, but only if such liabilities, obligations and commitments and related expenses or (iii) relate to any obligations or arise out liabilities under the Assumed Contracts which, whether pursuant to the terms of the Business Assumed Contracts or any Acquired Asset in the ordinary course of business and consistent with dealing of the representationsparties, warranties, covenants, obligations and agreements set forth were performed (in this Agreement and whole or in part) or required to be performed (iiin whole or in part) are of a nature and in an amount generally consistent with on or prior to the liabilities, obligations, commitments and expenses reflected in Closing Date) (the Financial Statements referred to in Section 3.04;“Assumed Liabilities”):
(via) all Expense Items (as defined in the Site Access, Cooperation executory liabilities and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F obligations of the SARCA; and
(vii) Sellers in respect of the Assumed Contracts as specified on Schedule 3.20 to the extent arising after the Closing, except that the Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations relating to, based on or arising out ofof any breach or default (including for this purpose any event which, with notice or lapse of time would constitute such a breach or default) by the Sellers of any action which could be construed as a "plant closing" provision of any Assumed Contract, including liabilities or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates as obligations arising out of the Closing Date whose principal place of employment is one of Sellers’ failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated herebyClosing.
(b) Notwithstanding Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreementthe foregoing, Purchaser the Buyer shall not assume any liability or be liable or responsible obligation with respect toto any contract other than (i) such written contracts to which either Seller is a party and previously delivered to the Buyer, (ii) in the case of (A) the Memorandum of Understanding by and Seller shall retainbetween the Aquafilm and Healthy Moments LLC dated December 15, pay2003 and (B) the form of Supply Agreement between Aquafilm and Home Market Foods, perform and discharge when dueInc. delivered to the Buyer on February 10, all Excluded Liabilities. To 2004 (the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(b“Term Sheets”), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except the obligations under the written Term Sheets but only to the extent included of the express terms contained therein and (iii) such oral agreements specifically described on Schedule 3.20 as and to the extent previously described in Closing Working Capitalfull (without any omission) to the Buyer. The term "Excluded For the avoindance of doubt, therefore, in the case of the Term Sheets, any matters not expressly set forth on the Term Sheets are Retained Liabilities" 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") Upon which are assigned by the terms and subject Companies to the conditions of Purchaser (the "Assumed Liabilities"). Except as and to the extent otherwise expressly provided in this Agreement, Purchaser does not, and shall not, assume or be deemed to assume, effective as nor shall Purchaser discharge, be responsible for or liable with respect to any other liabilities or obligations of the ClosingCompanies or any other person, and from and whether arising prior to, on or after the ClosingClosing Date (collectively, Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Seller (the "ASSUMED LIABILITIESRetained Liabilities"), including without limitation: (a) any liability or obligations of the Companies arising out of or relating to any contract or agreement not fully and effectively assigned to and specifically assumed by Purchaser pursuant to this Agreement; (b) any liability or obligations of the Companies arising out of or relating to any employee benefit (including health) plans, programs, policies or other than 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 Excluded Liabilities:
(i) all liabilitiesliability or obligations of the Companies arising out of any litigation, obligations and commitments of Seller under the assigned contracts constituting an Acquired Asset (the "ASSIGNED CONTRACTS") claim, arbitration or other similar proceeding relating to the extent Purchased Assets before the Closing Date, regardless of whether or not such liabilitieslitigation, obligations and commitments relate to the period claim, arbitration or other similar proceeding is pending, threatened or asserted before, on or after the Closing Date;
, (ii) all accounts payable and accruals to the extent included in Closing Working Capital (as defined in Section 1.05(a));
(iiid) any liability, obligation or commitment for Taxes (as defined in Section 3.12) liabilities and obligations of the Companies' relating to the operation Excluded Assets, (e) any and all liabilities and obligations, direct or ownership of the Acquired Assets indirect, fixed or contingent, for any Tax period (Taxes, whether or portion thereof) beginning not such Taxes are assessed prior to, on or after the Closing Date;
date and (ivf) all liabilities, obligations and commitments of Seller, relating to or arising out accounts payable of the operation of the Business or any Acquired Asset by Purchaser after the Closing;
(v) all liabilities, obligations and commitments of Seller based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring on or prior to the Closing Date, but only if such liabilities, obligations and commitments and related expenses (i) relate to or arise out of the Business or any Acquired Asset in the ordinary course of business and consistent with the representations, warranties, covenants, obligations and agreements set forth in this Agreement and (ii) are of a nature and in an amount generally consistent with the liabilities, obligations, commitments and expenses reflected in the Financial Statements referred to in Section 3.04;
(vi) all Expense Items (as defined in the Site Access, Cooperation and Remedial Control Agreement (the "SARCA"), attached as Exhibit F hereto) identified as Purchaser's Payment Obligations pursuant to Section I.F of the SARCA; and
(vii) any liabilities or obligations relating to, based on or arising out of, any action which could be construed as a "plant closing" or "mass layoff", as those terms are defined in the WARN Act, or any "employment loss," as defined in the WARN Act, which any employee of Seller or any of its affiliates Companies as of the Closing Date whose principal place of employment is one of the Business Properties may suffer or may be deemed to suffer as a consequence of the transactions contemplated herebyDate.
(b) Notwithstanding Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume or be liable or responsible with respect to, and Seller shall retain, pay, perform and discharge when due, all Excluded Liabilities. To the extent a liability constitutes both an Assumed Liability as defined in Section 1.03(a) and an Excluded Liability under Section 1.03(b), it shall be deemed for all purposes to be an Excluded Liability and not an Assumed Liability except to the extent included in Closing Working Capital. The term "Excluded Liabilities" means:
Appears in 1 contract