Assumption of Liabilities and Obligations. (a) At the Closing, ATS shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations. (b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"): (i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law; (ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing; (iii) any insurance policies of BEA; (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed; (v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document; (vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement; (vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets. (viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed; (ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and (x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA. (c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/), Asset Purchase Agreement (American Tower Systems Corp)
Assumption of Liabilities and Obligations. (a) At the ClosingExcept only as set forth in Section 2.3(b), ATS shall assume Buyer will assume, be responsible for and agree to pay, perform and/or otherwise discharge and perform when due the following obligations and liabilities Liabilities of BEA Seller (collectively, the "BEA “Assumed Obligations"): Liabilities”):
(i) all obligations of the obligations and liabilities of BEA Seller under the BEA Assumable Agreementsagreements, contracts, leases, licenses, and other arrangements referred to in the definition of Purchased Assets either (A) to furnish goods, services, and other non-cash benefits to another party after the Closing; or (B) to pay for goods, services, and other non-cash benefits that another party will furnish to it after the Closing
(ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, Liabilities set forth on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed ObligationsSchedule 2.3(a).
(b) ATS shall Notwithstanding the foregoing, Buyer will not assume or become obligated to perform any debt, liability be responsible or obligation of BEA relating to liable for any of the following matters Liabilities of Seller or its Affiliates (collectively, the "BEA Nonassumed Obligations"“Excluded Liabilities”):
(i) the ownership or operation any Liability of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Seller for Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;,
(ii) any obligations or liabilities under Liability of Seller for income, transfer, sales, use, and other Taxes arising in connection with the BEA Assumable Agreements relating to consummation of the period prior to transactions contemplated hereby (including any income Taxes arising because Seller is transferring the Closing;Purchased Assets),
(iii) any insurance policies Liability of BEA;Seller for the unpaid Taxes of any Person under Reg. §1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise,
(iv) those required any obligation of Seller to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(ivindemnify any Person (including any of Seller stockholders) by reason of the BEA Disclosure Schedule indicates fact that such obligation Person was a director, officer, employee, or liability will not be assumed;agent of Seller or any of its subsidiaries or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise),
(v) any liability Liability of Seller for costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby,
(v) any Liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA Seller under this Agreement (or under any Collateral Documentside agreement between Seller on the one hand and Buyer on the other hand entered into on or after the date of this Agreement);
(vi) any liability Liability or obligation from or of Seller relating to breach dissenter or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Documentappraisal rights under applicable state law; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.or
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sagebrush Gold Ltd.), Asset Purchase Agreement (American Energy Fields, Inc.)
Assumption of Liabilities and Obligations. (a) At the Closing, ATS shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA Meridian (collectively, the "BEA Meridian Assumed Obligations"): (i) all of the obligations and liabilities of BEA Meridian under the BEA ATS Assumable Agreements, and (ii) all obligations and liabilities of BEA Meridian with respect to the ownership and operation of the BEA Meridian Assets and the conduct of the BEA Meridian Business, on and after the Closing Date, and (iii) all obligations and liabilities of Meridian arising from or relating to the acquisition, ownership or operation of the New Sites, whether arising prior to or after the Closing Date (the "New Site Assumed Obligations"), except for such obligations and liabilities (A) that arise from grossly negligent or willful misconduct of Meridian prior to the Closing Date or (B) the existence of which is in contravention of (I) representations or warranties made by Meridian pursuant to the provisions of Article 3, (II) covenants or agreements made by Meridian pursuant to the provisions of Section 5.6, or (III) provisions of this Agreement requiring the approval of ATS; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Meridian obligation and liabilities referred to in Section 2.2(b) (the "Meridian Nonassumed Obligations.
(b) ATS "); provided further, however, that, notwithstanding the preceding proviso or Section 2.2(b), the term "Meridian Nonassumed Obligations" shall not assume or become obligated to perform include, and the term "Meridian Assumed Obligations" shall include, any debt, liability or obligation of BEA relating to any arising out of the following matters transfer or assignment to ATS of, or the use or enjoyment of the benefits by ATS under, any Contract, Governmental Authorization or Private Authorization the transfer or assignment of which (according to Section 2.2(a) of the Meridian Disclosure Schedule) requires or may require the consent of any Authority or other third party (collectively, the "BEA Nonassumed ObligationsNonassignable Contracts"):
(i) the ownership ), if ATS has, on or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA notified Meridian in writing (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following an "Acceptance Notice") that ATS consents to the extent same arise from Events occurring prior transfer or assignment of such Nonassignable Contract despite the failure or inability of ATS and Meridian to obtain the approval or existing on the Closing Date: products liability, Legal Actions consent of an Authority or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations a third party whose approval or liabilities under the BEA Assumable Agreements relating consent is required pursuant to the period prior terms of such Nonassignable Contract, or elects to receive the Closing;
(iii) any insurance policies benefits of BEA;
(iv) those such Nonassumable Contract, in either of which events, if the approval or consent of an Authority or a third party applicable to transfer of such Nonassignable Contract is required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating obtained as a condition to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEAATS's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA at Closing pursuant to the provisions of this Agreement Section 6.1(a), 6.2(d) or any Collateral Document; and
(x) any Contract with any Affiliate of BEA6.2(m), other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify have waived such condition with respect to such Nonassignable Contract. With respect to any Nonassignable Contract for which the indemnification provisions applicable consent of Article 8 nor the third party is not obtained prior to reallocate responsibility the Termination Date and for which ATS does not timely deliver an Acceptance Notice as described in the matters set forth therein.preceding sentence, the rights and obligations of the parties shall be as follows unless otherwise agreed by Meridian and ATS in writing:
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Assumption of Liabilities and Obligations. (a) At the Closing, ATS shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA Meridian (collectively, the "BEA Meridian Assumed Obligations"): (i) all of the obligations and liabilities of BEA Meridian under the BEA ATS Assumable Agreements, and (ii) all obligations and liabilities of BEA Meridian with respect to the ownership and operation of the BEA Meridian Assets and the conduct of the BEA Meridian Business, on and after the Closing Date, and (iii) all obligations and liabilities of Meridian arising from or relating to the acquisition, ownership or operation of the New Sites, if any, whether arising prior to or after the Closing Date (the "New Site Assumed Obligations"), except for such obligations and liabilities (A) that arise from grossly negligent or willful misconduct of Meridian prior to the Closing Date or (B) the existence of which is in contravention of (I) representations or warranties made by Meridian pursuant to the provisions of Article 3, (II) covenants or agreements made by Meridian pursuant to the provisions of Section 5.6, or (III) provisions of this Agreement requiring the approval of ATS; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Meridian obligation and liabilities referred to in Section 2.2(b) (the "Meridian Nonassumed Obligations.
(b) ATS "); provided further, however, that, notwithstanding the preceding proviso or Section 2.2(b), the term "Meridian Nonassumed Obligations" shall not assume or become obligated to perform include, and the term "Meridian Assumed Obligations" shall include, any debt, liability or obligation of BEA relating to any arising out of the following matters transfer or assignment to ATS of, or the use or enjoyment of the benefits by ATS under, any Contract, Governmental Authorization or Private Authorization the transfer or assignment of which (according to Section 2.2(a) of the Meridian Disclosure Schedule) requires or may require the consent of any Authority or other third party (collectively, the "BEA Nonassumed ObligationsNonassignable Contracts"):
(i) the ownership ), if ATS has, on or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA notified Meridian in writing (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following an "Acceptance Notice") that ATS consents to the extent same arise from Events occurring prior transfer or assignment of such Nonassignable Contract despite the failure or inability of ATS and Meridian to obtain the approval or existing on the Closing Date: products liability, Legal Actions consent of an Authority or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations a third party whose approval or liabilities under the BEA Assumable Agreements relating consent is required pursuant to the period prior terms of such Nonassignable Contract, or elects to receive the Closing;
(iii) any insurance policies benefits of BEA;
(iv) those such Nonassumable Contract, in either of which events, if the approval or consent of an Authority or a third party applicable to transfer of such Nonassignable Contract is required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating obtained as a condition to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEAATS's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA at Closing pursuant to the provisions of this Agreement Section 6.1(a), 6.2(d) or any Collateral Document; and
(x) any Contract with any Affiliate of BEA6.2(m), other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify have waived such condition with respect to such Nonassignable Contract. With respect to any Nonassignable Contract for which the indemnification provisions applicable consent of Article 8 nor the third party is not obtained prior to reallocate responsibility the Termination Date and for which ATS does not timely deliver an Acceptance Notice as described in the matters set forth therein.preceding sentence, the rights and obligations of the parties shall be as follows unless otherwise agreed by Meridian and ATS in writing:
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Tower Systems Corp)
Assumption of Liabilities and Obligations. (a) At the ClosingWithout limiting any obligations of Buyer under any applicable TBA, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): perform:
(i) all the Group II/III Assumed Liabilities as of the obligations and liabilities of BEA under the BEA Assumable Agreements, and Group II/III Closing Date;
(ii) all obligations and liabilities of BEA with respect subject to the ownership and operation last sentence of Section 5.7, the Group IV Assumed Liabilities as of the BEA Assets and the conduct of the BEA Business, on and after the Group IV Closing Date; provided, however, that notwithstanding and
(iii) the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, Group V Assumed Liabilities as of the BEA Nonassumed ObligationsGroup V Closing Date.
(b) ATS Buyer shall not be required to assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
following: (i) the ownership any obligations or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Dateliabilities under any Excluded Contract, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
applicable Effective Time, except insofar as a proration or adjustment therefor is made in favor of Buyer under Section 2.5(a), (iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from arising out of any litigation, proceeding or claim by any person or entity relating to breach the business or operations of any warranty Station or any misrepresentation by BEA under this Agreement of the Assets with respect to any events or any Collateral Document;
circumstances that occur or exist prior to the applicable Effective Time relating to such Station or Assets, (viiv) any liability or obligation from or relating to breach or violation ofcredit agreements, note purchase agreements, indentures, or failure to perform, other financing arrangements (other than any Assumed Contracts) of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
Seller and (viiv) any other obligation or liability of Seller, LPI or the Assignee that is not an Assumed Liability (including, without limitation, any increase in the Assumed Liabilities in violation of Section 2.7(c)). Buyer shall perform all obligations arising out of the Assets (including the Assumed Contracts and the Licenses) relating to any asset the period on or after the applicable Effective Time. Seller shall retain all liabilities of BEA Seller not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid assumed by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEABuyer.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to renteach Station, utility chargesthe parties acknowledge that after the Effective Time with respect to such Station, Pro Ratable Taxes Seller shall not, by any voluntary act or omission, increase the Assumed Liabilities other than as permitted in accordance with the terms and wages, salaries and accrued but unused vacation provisions of BEA employees) arising from the ownership or operation of the BEA Assets this Agreement or the conduct TBAs, without the prior written consent of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinBuyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Paxson Communications Corp), Asset Purchase Agreement (Ccci Capital Trust Iii)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect any Seller under the Licenses and the Assumed Contracts to the ownership extent that either (a) the obligations and operation liabilities relate to the time after the Effective Time or (b) Buyer received a Working Capital Credit therefor under Section 2.4(a) as a result of the BEA Assets proration of such obligations and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS liabilities. Buyer shall not assume and agree to payany other obligations or liabilities of any Seller, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) the ownership any obligations or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, liabilities under any Employment Arrangement of BEA Contract (including without limitation any obligation to any BEA Employee for severance benefitsfilm or programming license agreement) not included in the Assumed Contracts, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Effective Time except insofar as Buyer receives a Working Capital Credit therefor under Section 2.4(a), (iii) any insurance policies claims, litigation, or proceedings relating to the operation of BEA;
the Station prior to the Closing, whether asserted or filed before or after the Effective Time, (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any obligations or whichliabilities of any Seller under any management incentive, if disclosedemployee pension, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation retirement, or liability will not be assumed;
other benefit plans, (v) any liability obligations or obligation from or relating to breach liabilities of any warranty or Seller under any misrepresentation by BEA under this Agreement or any Collateral Document;
collective bargaining agreements, (vi) any liability or obligation from or relating to breach or violation ofany employee of the Station for severance benefits, vacation time, or failure sick leave accrued prior to performthe Closing Date, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation credit agreements, note purchase agreements, indentures, or liability relating to any asset of BEA not other financing arrangements, other than leases or agreements listed on Schedule 3.7 and included in the BEA Assets.
Assumed Contracts, (viii) any obligation agreements entered into other than in the ordinary course of business of the Station, or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxesobligations or liabilities caused by, feesarising out of, expenses or other amounts required to be paid by BEA pursuant resulting from any action or omission of any Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASellers.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Valuevision International Inc), Asset Purchase Agreement (Paxson Communications Corp)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect Sellers under the Licenses and the Assumed Contracts to the ownership extent that either (a) the obligations and operation liabilities relate to the time after the Effective Time or (b) Buyer received a Working Capital Credit therefor under Section 2.5(a) as a result of the BEA Assets proration of such obligations and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS liabilities. Buyer shall not assume and agree to payany other obligations or liabilities of any Seller, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) the ownership any obligations or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, liabilities under any Employment Arrangement of BEA Contract (including without limitation any obligation to any BEA Employee for severance benefitsfilm or programming license agreement) not included in the Assumed Contracts, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Effective Time except insofar as Buyer receives a Working Capital Credit therefor under Section 2.5(a), (iii) any insurance policies claims, litigation, or proceedings relating to the operation of BEA;
the Stations prior to the Closing, whether asserted or filed before or after the Effective Time, (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any obligations or whichliabilities of any Seller under any management incentive, if disclosedemployee pension, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation retirement, or liability will not be assumed;
other benefit plans, (v) any liability obligations or obligation from or relating to breach liabilities of any warranty or Seller under any misrepresentation by BEA under this Agreement or any Collateral Document;
collective bargaining agreements, (vi) any liability or obligation from or relating to breach or violation ofany employee of the Stations for severance benefits, vacation time, or failure sick leave accrued prior to performthe Closing Date, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation credit agreements, note purchase agreements, indentures, or liability relating to any asset of BEA not other financing arrangements, other than leases or agreements listed on Schedule 4.7 and included in the BEA Assets.
Assumed Contracts, (viii) any obligation agreements entered into other than in the ordinary course of business of the Stations, or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxesobligations or liabilities caused by, feesarising out of, expenses or other amounts required to be paid by BEA pursuant resulting from any action or omission of any Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASellers.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Quantum Direct Corp), Asset and Stock Purchase Agreement (Paxson Communications Corp)
Assumption of Liabilities and Obligations. (a) At the Closing, ATS shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA Seller (collectively, the "BEA Seller Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller under the BEA Seller Assumable Agreements, and (ii) all obligations and liabilities of BEA Seller with respect to the ownership and operation of the BEA Seller Assets and the conduct of the BEA Seller Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Seller Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA Seller relating to any of the following matters (collectively, the "BEA Seller Nonassumed Obligations"):
(i) the ownership or operation of the BEA Seller Assets or the conduct of the BEA Seller Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA Seller (including without limitation any obligation to any BEA Seller Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Seller Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEASeller;
(iv) those required to be disclosed in the BEA Seller Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Seller Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA Seller under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEASeller's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.Excluded Asset;
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA Seller pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEASeller, other than those, if any, set forth in Section 2(b)(x) of the BEA Seller Disclosure Schedule. All BEA Seller Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEASeller.
(c) Notwithstanding anything contained Anything in this Section or elsewhere in this Agreement to the contrarycontrary notwithstanding, except as set forth in the term "Seller Nonassumed Obligations" shall not include, and the term "Seller Assumed Obligations" shall include, any liability arising out of the transfer or assignment to ATS of, or the use or enjoyment of the benefits by ATS under, any Contract, Governmental Authorization or Private Authorization the transfer or assignment of which (according to Section 2.2(c) of the BEA Seller Disclosure Schedule) requires or may require the consent of any Authority or other third party (collectively, all items of income and expense (including without limitation with respect to rentthe "Nonassignable Contracts"), utility chargesif ATS has, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except notified Seller in writing (an "Acceptance Notice") that Pro Ratable Taxes (ATS consents to the transfer or assignment of such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues Nonassignable Contract despite the failure or paid any such expenses inability of ATS and Seller to obtain the approval or charges which, consent of an Authority or other Person whose approval or consent is required pursuant to the terms hereofof such Nonassignable Contract, or elects to receive the benefits of such Nonassumable Contract, in either of which events, if the approval or consent of an Authority or other party Person applicable to transfer of such Nonassignable Contract is entitled required to or responsible for, it shall furnish the other party with be obtained as a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts condition to agree upon such items and other adjustments prior ATS' obligations at Closing pursuant to the Closing Date andprovisions of Section 6.1(a) or 6.2(d), in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend have waived such condition with respect to such Nonassignable Contract. With respect to any Nonassignable Contract for which the applicable consent of any Authority or modify other Person is not obtained prior to the indemnification provisions Termination Date and for which ATS does not timely deliver an Acceptance Notice as described in the preceding sentence, Seller and ATS shall negotiate in good faith to reach an equitable sharing of Article 8 nor to reallocate responsibility for the matters set forth thereinrights and obligations under such Nonassignable Contracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/), Asset Purchase Agreement (American Tower Systems Corp)
Assumption of Liabilities and Obligations. (a) At On the ClosingClosing Date, ATS subject to Section 2.5, Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): perform:
(i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect Seller under the Assigned Licenses and Assumed Contracts to the ownership extent that such liabilities and operation of obligations relate to the BEA Assets and the conduct of the BEA Business, period on and or after the Closing Date, and
(ii) all liabilities of Seller relating to the Business in the following categories, to the extent that such liabilities do not exceed, in the aggregate, $9,672,000:
(A) operating payables;
(B) inventory received – not invoiced;
(C) prepaid customer orders;
(D) gift certificates;
(E) vendor chargebacks;
(F) accrued sales taxes;
(G) accrued withholding and unemployment taxes;
(H) accrued salaries and bonuses;
(I) accrued annual leave; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligationsand
(J) deferred rent.
(b) ATS Buyer shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) any obligations or liabilities under any Contract not included in the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing DateAssumed Contracts, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Closing Date, except for obligations specifically described in Section 2.4(a), (iii) any insurance policies claims or pending litigation or proceedings relating to the operation of BEA;
the Business prior to the Closing (except for customer product returns in the ordinary course of business), (iv) those required except for obligations specifically described in Section 2.4(a), obligations or liabilities of Seller arising out of or relating to be disclosed the Assets, Seller’s activities, actions, or operation of the Business, or Seller’s use or ownership of the Assets prior to the Closing (except for customer product returns in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) ordinary course of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
business); (v) obligations or liabilities arising under financing arrangements, (vi) obligations or liabilities of Seller under any liability Employee Plan, Multiemployer Plan, Multiple Employer Plan, or collective bargaining agreement, (vii) except as specifically provided in Section 2.4(a), any obligation from to any employee of Seller for wages or salaries, (viii) except as specifically provided in Section 2.4(a), any obligation to any employee of Seller for severance benefits, vacation time, sick leave, or other benefits under any Compensation Arrangements or any obligation relating to workers’ compensation claims of employees of Seller, (ix) obligations or liabilities arising prior to the Closing under any state escheat laws, (x) except as specifically provided in Section 2.4(a), obligations or liabilities of Seller for Taxes, (xi) obligations or liabilities caused by, arising out of, resulting from, or relating to breach any action or omission of any warranty Seller prior to the Closing, whether or any misrepresentation by BEA under this Agreement not related to the operation of the Business or any Collateral Document;
Seller’s use or ownership of the Assets (viexcept for customer product returns in the ordinary course of business), or (xii) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease other obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid liabilities of Seller not described in Section 2.4(a). All obligations and liabilities of Seller not assumed by BEA Buyer pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations 2.4 shall remain and be the obligations and liabilities solely of BEASeller.
(c) Notwithstanding anything contained in this Agreement Seller shall reimburse Buyer to the contrary, except as set forth extent that the liabilities of Seller in the categories listed in Section 2.2(c2.4(a)(ii) that are actually paid by or on behalf of Buyer exceed $9,672,000. In accordance with the Transition Services Agreement, Seller may pay certain of the BEA Disclosure Schedule, all items of income and expense (including without limitation liabilities described in Section 2.4(a)(ii) on Buyer’s behalf in accordance with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from Buyer’s instructions. To the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for extent that Seller pays any such items liabilities on or prior Buyer’s behalf in accordance with Buyer’s instructions, and Buyer has not previously advanced funds to Buyer for the Closing Date and ATS entitled to and responsible payment of such liabilities, Buyer will reimburse Seller for any the amount of such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses liabilities paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinSeller on Buyer’s behalf.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At Effective as of the ClosingEffective Time, ATS Purchaser shall assume assume, perform and agree to pay, discharge and perform only the following obligations and liabilities of BEA Sellers’ (collectively, the "BEA “Assumed Obligations"): Liabilities”):
(i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (iia) all obligations and liabilities of BEA with respect to Sellers arising exclusively under the ownership and operation of the BEA Acquired Assets and the conduct of the BEA Business, on from and after the Closing DateEffective Time; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree if a required consent to pay, and shall assign an Assumed Contract cannot be obligated with respect toobtained, Purchaser shall only be liable for the BEA Nonassumed Obligations.benefits received under the Assumed Contract until such time as consent is obtained;
(b) ATS the Accrued Vacation Liabilities; and
(c) all obligations and liabilities, whether or not accrued, arising out of or relating to events or occurrences happening or conditions occurring after Effective Time, for any tax that may be imposed by any governmental entity on the ownership, sale, operation or use of the Acquired Assets. Notwithstanding the foregoing, all other obligations and liabilities of Sellers shall not assume or become obligated to perform any debtbe assumed by Purchaser and shall remain and be the obligation and liability solely of Sellers including, liability or obligation of BEA relating to any of the following matters (collectivelybut not limited to, the "BEA Nonassumed Obligations"):
following: (i) obligations or liabilities under any Contract not included in the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave)Acquired Assets, and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities arising under the BEA Assumable Agreements relating Acquired Assets that relate to the time period prior to the Closing;
(iii) any insurance policies Effective Time or arise out of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or events occurring prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent periodEffective Time. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis Other than as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained specified in this Section 2.2(c) 2.6, Purchaser, directly or indirectly, shall assume no liabilities or obligations of Sellers and shall not be liable therefor. This Section 2.6 is not intended to and shall not benefit any person or entity other than Sellers and Purchaser and nothing in this Section 2.6 shall create or be deemed to amend construed as creating any third party beneficiary right in any person or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinentity.
Appears in 1 contract
Sources: Asset Purchase Agreement (Skilled Healthcare Group, Inc.)
Assumption of Liabilities and Obligations. (a) At the ClosingAssignor, ATS shall assume by this ----------------------------------------- assignment, hereby transfers and agree assigns to payAssignee all of its rights, discharge and perform the following liabilities, obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA duties in connection with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Datesuch Assets, including without limitation Taxes, unfunded pension costs, (i) any Employment Arrangement of BEA (including without limitation any obligation liability attributable to any BEA Employee for severance benefits, vacation time or sick leave), products sold by Assignor through the date hereof (other than any products sold by Assignor under the Brass Eagle name) and any of products sold by Assignee on or after the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liabilitydate hereof, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations liability attributable to any claim by any present or liabilities under the BEA Assumable Agreements relating former employee of Assignor or by any present, former or future employee of Assignee to the period prior extent that such claim relates to medical, pension or other employee benefits that are attributable to the Closing;
employment of any such individual in Assignor's non-paintball operations or in any operations of Assignee, (iii) any insurance policies Federal, state or local income taxes imposed on or assessed against Assignor as a result of BEA;
the assignment and assumption contemplated hereby, (iv) those required any Federal, state or local personal property, real property, sales, use, excise, income or other tax imposed on or assessed against Assignor to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates extent that such obligation taxes relate or liability will not be assumed;
are attributable to the non-paintball related business of Assignor or to any operations of Assignee, (v) any liability indebtedness, accounts payable or obligation from or relating other financial obligations attributable to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
such Assets and (vi) any other liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant attributable to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets Assignor's nonpaintball related business, or under any contracts, licenses, leases or other agreements transferred to the conduct Assignee hereby (the "Assumed Liabilities"); and Assignee, by acceptance hereof, hereby assumes and agrees to fully and timely undertake and perform all of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to Assumed Liabilities and responsible for any such items on or prior duties relating to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinAssets.
Appears in 1 contract
Sources: Assignment, Assumption and Indemnification Agreement (Brass Eagle Inc)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform all Liabilities of Seller to be assumed, observed and performed by Seller from and after the following obligations and liabilities of BEA Closing Date (collectively, the "BEA Assumed ObligationsLiabilities"): ) (ia) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets FCC Licenses and the conduct of the BEA Business, Contracts insofar as such Liabilities arise on and after the Closing Date; provided, however, that notwithstanding Date and relate to the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume period on or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to after the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement (b) with respect to which an adjustment to the Purchase Price is made in favor of BEA (including without limitation any obligation Buyer pursuant to any BEA Employee for severance benefits, vacation time or sick leaveSection 2.4(b), and (c) to any employee of Seller who is hired by Buyer insofar as such Liabilities arise on and after the following Closing Date and relate to the extent same arise from Events occurring prior to period on or existing on after the Closing Date: products liability. Buyer shall not assume any other obligations or liabilities of Seller, Legal Actions or other Claimsincluding, and obligations and liabilities relating to Environmental Law;
without limitation, (i) any Liabilities under any Contract which is an Excluded Asset, (ii) any obligations or liabilities Liabilities under the BEA Assumable Agreements Contracts relating to the period prior to the Closing;
Closing Date, (iii) any insurance policies claims or pending or threatened litigation or proceedings relating to the operation of BEA;
the Station prior to the Closing, (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) any Liabilities of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
Seller under any Elcom Employee Benefit Plans and (v) any liability or obligation from or relating Liabilities of Seller for any accrued vacation pay for any employees of the Station (except to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vithe extent provided for in Section 8.4(b) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings hereof). Except as expressly set forth in this Agreement Section 2.6, Buyer does not assume any Liabilities of the Seller or the Station and Seller shall defend, indemnify and hold Buyer harmless from and against any Collateral Document, including without limitation Article 5 and all Liabilities of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to Seller and the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, Station other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEAthose expressly assumed herein.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At As of the Closing, ATS the Buyer shall assume and agree to pay, discharge and perform the following (and only the following) obligations and liabilities of BEA the Seller (collectively, the "BEA “Assumed Obligations"): Liabilities”):
(i) all Liabilities of the obligations Seller and liabilities of BEA its Affiliates under the BEA Assumable AgreementsAffiliation Agreements listed on Schedule 2.1(b) of the Company Disclosure Letter, and in each case, regardless of whether arising or related to the period of time after or prior to the Effective Time; including, for avoidance of doubt, those arising out of a breach of contract, breach of warranty, fraud, tort, infringement, whether based on negligence, strict liability or otherwise;
(ii) all obligations Liabilities of the Seller and liabilities of BEA with respect its Affiliates under the Assumed Contracts, in each case to the extent arising after, and related to the period of time after, the Effective Time;
(iii) Liabilities that relate to the Buyer’s ownership and operation of the BEA Assets and the or conduct of the BEA Business, on and in each case, after the Closing DateEffective Time;
(iv) all Accounts Payable outstanding as of the Effective Time; provided, however, that notwithstanding and
(v) such other obligations or liabilities specifically identified on Schedule 2.3(a) of the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed ObligationsCompany Disclosure Letter.
(b) ATS Except as set forth in Section 2.3(a) above, the Assumed Liabilities shall not assume include (and the Seller or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"its respective Affiliates shall retain):
(i) the ownership any Liability related to or operation arising out of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental LawExcluded Assets;
(ii) any obligations Liability related to or liabilities under arising out of any Asset to the BEA Assumable Agreements extent such Liability relates to or arises out of the time period prior to the Effective Time;
(iii) any Liability related to or arising out of Legal Actions pending as of the Closing Date against the Seller, any of its Affiliates or otherwise relating to the period Business;
(iv) any Liability (including any future Legal Actions) related to or arising out of the conduct of the Business or ownership of the Assets prior to the Effective Time;
(v) any Liability of the Seller or any of its Affiliates or otherwise of the Business owed to the Seller or any of its Affiliates (except with respect to Liabilities under the Transaction Documents) or to any of its or their members, directors, managers, officers or employees;
(vi) any Liability under any Assumed Contract (other than the Affiliation Agreements listed on Schedule 2.1(b) of the Company Disclosure Letter) that arises after the Effective Time but that arises out of or relates to any breach thereof prior to the Effective Time;
(vii) all Retained Employee Liabilities;
(viii) any fees and expenses incurred by or on behalf of the Seller or any of its Affiliates in connection with or related to the transactions contemplated hereunder, including the fees and expenses of investment bankers, lawyers, accountants (including, with respect to the preparation of the Financial Statements) and other professional advisors;
(ix) any Liability of the Seller or any of its Affiliates arising out of or in connection with the negotiation and preparation of this Agreement and the other Transaction Documents or the Seller’s or its Affiliates’ consummation and performance of the transactions contemplated by this Agreement and the other Transaction Documents;
(x) any Debt of the Seller or any of its Affiliates;
(xi) any Liability related to or arising out of any agreement or understanding between or among the Seller and any of its Affiliates;
(xii) any Liability related to or arising out of the Seller’s or its Affiliates’ failure to obtain any License necessary for the conduct of the Business at any time prior to the Closing;
(iiixiii) any insurance policies Liability of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any kind or which, if disclosed, Section 2.2(b)(iv) nature for Taxes of the BEA Disclosure Schedule indicates that such obligation Seller and, with respect to the Assets, for any period ending on or liability will not be assumed;
before the Closing Date (v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating pursuant to any asset of BEA not included tax sharing agreement, tax indemnification or similar arrangement) and any Taxes payable by the Seller in connection with the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Documenttransactions contemplated hereby; and
(xxiv) any Contract with any Affiliate Liability that is not expressly assumed by the Buyer under Section 2.3(a) of BEA, this Agreement (in each case other than those, if any, set forth in any Taxes that are the responsibility of Buyer pursuant to Section 2(b)(x) 10). All Liabilities of the BEA Disclosure Schedule. All BEA Nonassumed Obligations Seller and its Affiliates other than the Assumed Liabilities (collectively, the “Retained Liabilities”) shall remain and be the obligations and liabilities Liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrarySeller and/or its applicable Affiliate. The Seller shall, except as set forth in Section 2.2(c) of the BEA Disclosure Scheduleor shall cause its Affiliates to, discharge and satisfy, and pay when due, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinRetained Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hemisphere Media Group, Inc.)
Assumption of Liabilities and Obligations. (a) At Upon the terms and subject to the conditions of this Agreement, in partial consideration of the transfer, conveyance and assignment to the Buyer of the Purchased Assets pursuant to the Assignment and Assumption Agreement, at the Closing, ATS the Buyer shall assume and agree to assume, pay, perform and discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable AgreementsSeller and each Seller Subsidiary, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Businessdirect or indirect, on and after the Closing Date; providedknown or unknown, howeverfixed or unfixed, that notwithstanding the foregoingchoate or inchoate, ATS shall not assume and agree to payliquidated or unliquidated, and shall not be obligated with respect tosecured or unsecured, the BEA Nonassumed Obligations.
(b) ATS shall not assume ▇▇▇▇ued, absolute, contingent or become obligated to perform any debtotherwise, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) whether arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends or on or after the Closing Date (collectively, the "ASSUMED LIABILITIES") and the Buyer shall be treated on a "closing defend and hold the Seller harmless with respect to the Assumed Liabilities. For the avoidance of doubt, the term Assumed Liabilities includes all liabilities and obligations of the books" basis as two partial periods, one ending at Seller and each Seller Subsidiary (including liabilities and obligations imposed by operation of law) other than to costs and expenses of liquidating the close of the Closing Date and the other beginning on the day Seller after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereofDissolution Plan (which are not being assumed hereunder by the Buyer). Without limiting the generality of the foregoing, the other party is entitled to Assumed Liabilities shall include the following obligations and liabilities of the Seller and each Seller Subsidiary:
(a) any liability or responsible for, it shall furnish obligation of the other party Seller and each Seller Subsidiary arising out of or in connection with a detailed statement the negotiation and preparation of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure ScheduleTransaction Documents or the consummation and performance of the transactions contemplated hereby, within sixty including any liability for Taxes so arising;
(60b) days thereafter. If any liability or obligation under the parties are unable within such period Contractual Obligations of the Seller and each Seller Subsidiary;
(c) any liability or obligation of the Seller and each Seller Subsidiary arising (i) from its failure to agree upon such items perform, or its negligent performance of, its obligations under, or (ii) out of or relating to any breach or claim of breach of a representation, warranty, covenant or agreement of the Seller and other adjustmentseach Seller Subsidiary contained in, BEA any Contractual Obligation of the Seller and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATSeach Seller Subsidiary, as the case may be;
(d) any liability, shall promptly reimburse the other party obligation or expense of any kind or nature for or relating to any income received and all past, present or expenses paid future Taxes owed by the Seller and each Seller Subsidiary or otherwise (including any liabilities, obligations and expenses pursuant to any tax sharing agreement, tax indemnification or similar arrangement);
(e) any liability or obligation of the Seller and each Seller Subsidiary to any of its present or former directors or officers;
(f) any liability, obligation, cost or expense of the Seller, each Seller Subsidiary or any of their Affiliates arising out of or relating to any claim, action, suit, complaint, dispute, demand, litigation or judicial, administrative or arbitration proceeding (collectively, "LITIGATION") to which the Seller or any Seller Subsidiary is or was a party (regardless of whether the Litigation is commenced before or after the Closing and whether or not it relates to or arises out of the Business), including the Shareholder Litigation;
(g) any liability or obligation of the Seller and each Seller Subsidiary with respect to any indebtedness or contingent obligations, including any accrued interest, fees and any penalties thereon;
(h) any liability or obligation of the Seller and each Seller Subsidiary to or with respect to Employees, Former Employees, consultants and former consultants, Benefit Plans and other party employee and not previously reimbursed employment-related liabilities or obligations with respect to the Business, including, without limitation, any liability or obligation under any employment agreement (including the Employment Agreement dated March 1, 1993 by and between the Seller and Samson Bitensky, as amended) or any other adjustment required similar agreement, and any ▇▇▇▇▇▇▇▇▇ ▇▇ ▇bligation assumed by this Sectionthe Buyer in accordance with Article V (Employee Matters);
(i) any accounts payable of the Seller and each Seller Subsidiary;
(j) any product liability or product warranty with respect to any product manufactured, produced or sold by the Seller (or any successor thereof) and each Seller Subsidiary (or any successor thereof); or
(k) any liability or obligation of the Seller and each Seller Subsidiary arising out of or relating to any Environmental Laws. Nothing The Buyer's obligation to assume and discharge the Assumed Liabilities shall not be subject to offset of any kind, including by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinany Transaction Document.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge and perform (i) any obligations or liabilities under the following Assumed Contracts insofar as they relate to the period after the Closing Date except insofar as an adjustment therefor is made in favor of Sellers under Section 2.3 (b), (ii) any claims or litigation or proceedings insofar as they relate to the operation of the Stations after the Closing, and (iii) any obligations or liabilities relating to the business operations of the Stations after the Closing, and all such obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of shall become and be the obligations and liabilities solely of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed ObligationsBuyer.
(b) ATS Buyer shall not assume any other obligations or become obligated to perform any debtliabilities of Sellers, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) any obligations or liabilities under any Contract not included in the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing DateAssumed Contracts, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating Assumed Contracts insofar as they relate to the period prior to the Closing;
Closing Date except insofar as an adjustment therefor is made in favor of Buyer under Section 2.3(b), (iii) any insurance policies claims or pending litigation or proceedings insofar as they relate to the operation of BEA;
the Stations prior to the Closing, (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any obligations or whichliabilities of Sellers under any employee pension, if disclosedretirement, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
other benefit plans, (v) any liability obligations or obligation from or relating to breach liabilities of Sellers under any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
collective bargaining agreements, (vi) any liability or obligation from or relating to breach or violation ofany employee of any of the Stations for severance benefits, vacation time, or failure sick leave accrued prior to performthe Closing Date, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or liabilities other amounts required to be paid than the liabilities being assumed by BEA Buyer pursuant to Section 2.4(a) caused by, arising out of, or resulting from any action or omission of Sellers prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASellers.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spanish Broadcasting System of New York Inc)
Assumption of Liabilities and Obligations. (a) At 2.1. The Assets will be sold, conveyed, transferred and assigned to the ClosingBuyer on the Closing Date free and clear of all liens, ATS shall assume security interests, mortgages, claims, restrictions, charges and agree to pay, discharge and perform the following obligations and liabilities of BEA encumbrances (collectively, the "BEA Assumed ObligationsLiens"): (i) all of the obligations and whatsoever. The Buyer does not assume, accept or undertake any obligations, duties, debts or liabilities of BEA under the BEA Assumable AgreementsSeller of any kind whatsoever pursuant to this Agreement or otherwise, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on except that from and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not Date Buyer hereby agrees to assume and agree to paypay and discharge the following liabilities (the "Assumed Liabilities") of Seller (to the extent Seller is not in default and solely to the extent to be performed after the Closing Date):
(a) All liabilities and obligations with respect to work-in-process and other liabilities incurred in the normal course of business, including accrued vacation and sick pay for Seller's employees; and
(b) All liabilities and obligations arising under the agreements with customers set forth on Schedule 2.1 hereto.
2.2. Except as provided in paragraph 2.1 and notwithstanding anything else to the contrary contained herein, Buyer is not assuming and shall not be obligated with respect liable for any liabilities of Seller, including, without limitation, any liabilities (i) under contracts and leases which shall not have been assigned to Buyer pursuant to this Agreement (including, but not limited to, office lease and any union agreements); (ii) for indebtedness for borrowed money; (iii) by reason of or arising as the BEA Nonassumed Obligations.
result of any default or breach by Seller of any contract, for any penalty assessed against Seller under any contract or relating to or arising out of any event which with the passage of time or after giving of notice, or both, would constitute or give rise to such a breach, default or penalty, whether or not such contract is being assigned to and assumed by Buyer pursuant to this Agreement; (biv) ATS shall not assume the existence of which would conflict with or become obligated constitute a breach of any representation, warranty, covenant or agreement of Seller or the Principals contained herein; (v) to perform any debtshareholder or affiliate of Seller or to any present or former employee, liability officer or obligation director of BEA or consultant to Seller (or independent contractor retained by Seller), including, without limitation, any bonuses, any termination or severance pay related to Seller's employees, and any post retirement medical benefits or other compensation or benefits; (vi) relating to the execution, delivery and consummation of this Agreement and the transactions contemplated hereby, including, without limitation, any and all taxes incurred as a result of the sale contemplated by this Agreement, except for sales, use or transfer taxes as set forth in paragraph 12 hereof; (vii) for any taxes accrued or incurred prior to the Closing Date or relating to any period (or portion of a period) prior thereto; (viii) relating to or arising out of any environmental matter, including, without limitation, any violation of any environmental law or any other law relating to health and safety of the following matters public or the employees of Seller; or (collectivelyix) relating to, or arising out of, services rendered by Seller, or the "BEA Nonassumed Obligations"):
(i) the ownership conduct or operation of the BEA Assets or the conduct business of the BEA Business Seller, prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Esquire Communications LTD)
Assumption of Liabilities and Obligations. (a) At As of the ClosingEffective Time, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): perform:
(i) all any obligation or liability of LIN under the Assumed Contracts to the extent that the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect relate to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and period after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental LawEffective Time;
(ii) any obligations liability or liabilities under obligation to any Transferred Employee arising on or after the BEA Assumable Agreements relating to the period prior to the ClosingEffective Time;
(iii) any insurance policies liability or obligation arising out of BEAany litigation, proceeding or claim by any Person or entity relating to any of the Assets or the Stations' Business in connection with any events or circumstances that occur or arise on or after the Effective Time;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any severance or which, if disclosed, Section 2.2(b)(iv) other liability arising out of the BEA Disclosure Schedule indicates that such termination of any employee's employment with or by Buyer on or after the Effective Time;
(v) any duty, obligation or liability will not be assumedrelating to any pension, 401(k) or other similar plan, agreement or arrangement provided by Buyer to any Transferred Employee on or after the Effective Time;
(vi) subject to the provisions of the Local Marketing Agreement, the Accounts Payable; and
(vii) one half of all state and local sales or use Taxes (or their equivalent) and transfer taxes or recording fees payable as a consequence of the sale of the Assets hereunder (all of the foregoing, together with other liabilities or obligations expressly assumed by Buyer hereunder, are referred to herein collectively as the "Assumed Liabilities").
(b) Unless otherwise required pursuant to the Local Marketing Agreement, Assumed Liabilities shall not include any of the following: (i) LIN's obligations under this Agreement or the Local Marketing Agreement; (ii) any income taxes incurred by LIN prior to the Effective Time; (iii) any liabilities of LIN resulting from, or arising out of, relating to, in the nature of or caused by any breach of contract, breach of warranty, tort, infringement, claim or lawsuit related to any Assumed Contract for the period prior to the Effective Time; (iv) any obligations or liabilities under any Excluded Contract; (v) any liability or obligation from arising out of any litigation, proceeding or claim by any Person relating to breach of any warranty the Stations' Business or any misrepresentation by BEA under this Agreement of the Assets in connection with any events or any Collateral Document;
circumstances that occur or exist prior to the Effective Time; (vi) any liability indebtedness for borrowed money of LIN or obligation from credit agreements, note purchase agreements, indentures or relating to breach or violation of, or failure to perform, other financing arrangements (other than any Assumed Contracts) of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
LIN; (vii) any obligations or liabilities arising out of the termination of the employment of any Employee by LIN prior to the Effective Time, the liabilities of LIN for accrued vacation time of any Employee (to the extent such vacation time has accrued prior to the Effective Time) and any other duty, obligation or liability relating to any asset of BEA not included in the BEA Assets.
"employee benefit plans" (viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth as defined in Section 2(b)(x3(3) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely ERISA) provided by LIN to any employee of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or LIN prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent periodEffective Time. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date Buyer shall be treated on a "closing perform all obligations arising out of the books" basis as two partial periods, one ending at Assets (including the close of the Closing Date Assumed Contracts and the other beginning FCC Licenses) on the day or after the Closing Date, except that Pro Ratable ; and (viii) one half of all state and local sales or use Taxes (such or their equivalent) and transfer taxes or recording fees payable as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) consequence of the BEA Disclosure Schedule, within sixty sale of the Assets hereunder. LIN shall retain all liabilities of LIN not assumed by Buyer (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein"Retained Liabilities").
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect any Seller under the Licenses and the Assumed Contracts to the ownership extent that either (a) the obligations and operation liabilities relate to the time after the Effective Time or (b) Buyer received a Working Capital Credit therefor under Section 2.4(a) as a result of the BEA Assets proration of such obligations and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS liabilities. Buyer shall not assume and agree to payany other obligations or liabilities of any Seller, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) the ownership any obligations or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, liabilities under any Employment Arrangement of BEA Contract (including without limitation any obligation to any BEA Employee for severance benefitsfilm or programming license agreement) not included in the Assumed Contracts, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Effective Time except insofar as Buyer receives a Working Capital Credit therefor under Section 2.4(a), (iii) any insurance policies claims, litigation, or proceedings relating to the operation of BEA;
either Station prior to the Closing, whether asserted or filed before or after the Effective Time, (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any obligations or whichliabilities of any Seller under any management incentive, if disclosedemployee pension, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation retirement, or liability will not be assumed;
other benefit plans, (v) any liability obligations or obligation from or relating to breach liabilities of any warranty or Seller under any misrepresentation by BEA under this Agreement or any Collateral Document;
collective bargaining agreements, (vi) any liability or obligation from or relating to breach or violation ofany employee of either Station for severance benefits, vacation time, or failure sick leave accrued prior to performthe Closing Date, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation credit agreements, note purchase agreements, indentures, or liability relating to any asset of BEA not other financing arrangements, other than leases or agreements listed on Schedule 3.7 and included in the BEA Assets.
Assumed Contracts, (viii) any obligation agreements entered into other than in the ordinary course of business of either Station, or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxesobligations or liabilities caused by, feesarising out of, expenses or other amounts required to be paid by BEA pursuant resulting from any action or omission of any Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASellers.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)