Assumption of Liabilities No Assumption of Other Liabilities Sample Clauses

Assumption of Liabilities No Assumption of Other Liabilities 

View SourceView Similar (4)

Draft with AI

Split View

Download

Related to Assumption of Liabilities No Assumption of Other Liabilities

• No Assumption of Liabilities COMPANY shall not assume or be obligated to pay any liabilities or obligations of Cerulean other than those liabilities arising after the Effective Date under the Assigned Assets that (a) do not arise from or relate to any breach by Cerulean of the Assigned Contracts, and (b) do not arise from or relate to any event, circumstance or condition occurring or existing on or prior to the Effective Date that, with notice or lapse of time, would constitute or result in a breach of any of such Assigned Contracts (collectively, “Assumed Liabilities”). All liabilities or obligations of Cerulean that are not Assumed Liabilities shall be collectively referred to as the “Retained Liabilities”. Cerulean shall be responsible for and shall pay when due all of its Retained Liabilities, including (i) all of its obligations and liabilities, including all obligations and liabilities arising out of, related to or in connection with any circumstances, causes of action, breach, violation, default or failure to perform with respect to the Assigned Assets prior to the Effective Date, (ii) any liabilities in respect of Taxes of Cerulean, (iii) any liabilities in respect of Taxes relating to the Products or the Assigned Assets that were incurred in or are attributable to the Pre-Effective Date Tax Period, and (iv) any Taxes arising in connection with the transactions contemplated by this Agreement. Nothing contained in this Agreement shall be construed as an agreement by COMPANY to assume any liability or to perform any obligation of Cerulean, whether known or unknown, fixed or contingent, asserted or unasserted, accrued or unaccrued, matured or unmatured, liquidated or unliquidated (including those arising out of any contract or tort, whether based on negligence, strict liability or otherwise) other than the Assumed Liabilities.

• Assumption of Liabilities Upon the terms and subject to the conditions of this Agreement, Buyer agrees, effective on the Effective Date, to assume the following liabilities and obligations of Seller (the "ASSUMED LIABILITIES"): (a) all liabilities and obligations of Seller arising with respect to post-Closing periods under (i) the Contracts listed on Schedule 2.02(a) attached hereto, (ii) Contracts entered into by Seller with subscribers in the ordinary course of business prior to the Closing and (iii) any other Contracts entered into by Seller with the consent of Buyer (which consent is not to be unreasonably withheld or delayed) in the ordinary course of business prior to the Closing (but excluding in all of the foregoing cases any liabilities or obligations attributable to any failure by Seller to comply with the terms thereof); (b) liabilities set forth on the Closing Statement to refund the security deposits to the customers who are entitled to receive same in accordance with the terms of their service contract, provided that the aggregate amount of liabilities assumed hereunder does not exceed the aggregate liability for such amount set forth in the Closing Statement ("CLOSING DEPOSIT LIABILITIES"); (c) liabilities set forth on the Closing Statement for unearned revenue, provided that the aggregate amount of liabilities assumed hereunder does not exceed the aggregate liability for such amount set forth in the Closing Statement ("CLOSING UNEARNED REVENUE LIABILITIES"); (d) liabilities which relate to periods on or after the Effective Date in respect of which prorations are made under Section 2.08 and liabilities which relate to periods prior to the Effective Date for which Seller has paid Buyer; and (e) subject to Section 8.02, any liability or obligation for Taxes arising from or with respect to the Purchased Assets, the System or the System Operations which is incurred in or attributable to any Post-Closing Tax Period.

• Non-Assumption of Liabilities Purchaser shall not, by the execution and performance of this Agreement or otherwise, assume, become responsible for, or incur any liability or obligation of any nature of the Sellers, except for the Assumed Liabilities being assumed under Section 1.6 hereof. By way of illustration, Purchaser shall not assume, become responsible for, or incur any liability for whether legal or equitable, matured or contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent, arising out of occurrences prior to the Closing Date arising out of or relating to: (a) violation of the requirements of any governmental authority or of the rights of any third person, relating to the reporting and payment of federal, state, or other income Tax Liabilities of Sellers; (b) any severance pay, or accrued vacation pay obligation or any other potential claims that could be brought or alleged by any of the Sellers employees for periods prior to the Closing Date, or any obligations under any employee benefit plan (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended) or any other fringe benefit program maintained or sponsored by Sellers or to which any of the Sellers contributes or any contributions, benefits or liabilities therefore or any liability for the withdrawal or partial withdrawal from or termination of any such plan or program by the Sellers; (c) the interest bearing debts of the Sellers, (d) any violation by the Sellers of any federal, state or local antitrust, racketeering or trade practice law, (e) liabilities or obligations of the Sellers for brokerage or other commissions relative to this Agreement or the transactions contemplated hereunder, (f) any and all liability and obligation for commissions and bonuses listed on Schedule 3.13; and (g) any rights, liabilities or responsibilities for any lease agreement that is not listed in Schedule 1.4(e).

• 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 DBC (collectively, the "DBC Assumed Obligations"): (i) all of the obligations and liabilities of DBC under the DBC Assumable Agreements, and (ii) all obligations and liabilities of DBC with respect to the ownership and operation of the DBC Assets and the conduct of the DBC 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 DBC Nonassumed Obligations. (b) ATS shall not assume or become obligated to perform any debt, liability or obligation of DBC relating to any of the following matters (collectively, the "DBC Nonassumed Obligations"): (i) the ownership or operation of the DBC Assets or the conduct of the DBC Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of DBC (including without limitation any obligation to any DBC 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 DBC Assumable Agreements relating to the period prior to the Closing; (iii) any insurance policies of DBC; (iv) those required to be disclosed in the DBC Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the DBC 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 DBC 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 DBC'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 DBC not included in the DBC 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 DBC pursuant to the provisions of this Agreement or any Collateral Document; and (x) any Contract with any Affiliate of DBC, other than those, if any, set forth in Section 2(b)(x) of the DBC Disclosure Schedule. All DBC Nonassumed Obligations shall remain and be the obligations and liabilities solely of DBC. (c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the DBC 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 DBC employees) arising from the ownership or operation of the DBC Assets or the conduct of the DBC Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with DBC 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 DBC Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, DBC 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 DBC 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, DBC 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.

• Novation of Liabilities (a) Each Party, at the request of another Party, shall use best efforts to obtain, or to cause to be obtained, any Consent, substitution or amendment required to novate or assign all obligations under Contracts, licenses and other obligations or Liabilities for which a member of such Party’s Group and a member of another Party’s Group are jointly or severally liable and that do not constitute Liabilities of such other Party as provided in this Agreement (such other Party, the “Other Party”), or to obtain in writing the unconditional release of all parties to such arrangements (other than any member of the Group who Assumed or retained such Liability as set forth in this Agreement), so that, in any such case, the members of the applicable Group will be solely responsible for such Liabilities; provided, however, that no Party shall be obligated to pay any consideration therefor to any third party from whom any such Consent, substitution or amendment is requested (unless such Party is fully reimbursed by the requesting Party). (b) If the Parties are unable to obtain, or to cause to be obtained, any such required Consent, release, substitution or amendment, the Other Party or a member of such Other Party’s Group shall continue to be bound by such Contract, license or other obligation that does not constitute a Liability of such Other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party’s Group who Assumed or retained such Liability as set forth in this Agreement (the “Liable Party”) shall, or shall cause a member of its Group to, pay, perform and discharge fully all the obligations or other Liabilities of such Other Party or member of such Other Party’s Group thereunder from and after the Effective Time. The Liable Party shall indemnify each Other Party and hold each of them harmless against any Liabilities (other than Liabilities of such Other Party) arising in connection therewith; provided, that the Liable Party shall have no obligation to indemnify any Other Party with respect to any matter to the extent that such Other Party has engaged in any knowing violation of Law, fraud or misrepresentation in connection therewith. The Other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or to another member of the Liable Party’s Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such Other Party pursuant to this Agreement). If and when any such Consent, release, substitution or amendment shall be obtained or such agreement, lease, license or other rights or obligations shall otherwise become assignable or able to be novated, the Other Party shall promptly Transfer all rights, obligations and other Liabilities thereunder of any member of such Other Party’s Group to the Liable Party or to another member of the Liable Party’s Group without payment of any further consideration and the Liable Party, or another member of such Liable Party’s Group, without the payment of any further consideration, shall Assume such rights and Liabilities. (c) If the Liable Party (i) suffers a downgrade to its senior debt credit rating to below BB (as rated by Standard & Poor’s) or (ii) no longer has its debt securities rated by any nationally recognized credit rating agencies, then, upon the demand of the Other Party, such Liable Party shall be required to post an irrevocable letter of credit or similar security obligation reasonably acceptable to the Other Party in an amount reasonably necessary to provide security to the Other Party for the Liable Party’s obligations pursuant to Section 2.9(b); provided, however, that the foregoing shall not apply with respect to Assumed Tyco Contingent Liability. For the avoidance of doubt, the posting of such a letter of credit or similar security obligation shall in no event relieve the issuing Party’s obligations pursuant to Section 2.9(b), and shall not result in a cap or limitation on such Party’s Liabilities with respect thereto.