Exclusion of Certain Liabilities. Notwithstanding anything contained in this Agreement to the contrary, the Assumed Liabilities shall not include, and, from and after the Asset Closing, Seller and its Affiliates shall retain, all Liabilities other than the Assumed Liabilities (the “Excluded Liabilities”), including: (a) except as provided in Section 2.1, (i) all Liabilities relating to any of the Assets accruing, or arising out of or relating to events, occurrences, pending or threatened Proceedings, acts or omissions happening prior to the Asset Closing and (ii) all Liabilities arising out of any act or omission of Seller, ROC, their respective Affiliates or their respective Representatives in effecting the Business Closure or pursuant to the Lease; (b) all Liabilities relating to any of the Permitted Liens accruing, or arising out of or relating to events, occurrences, pending or threatened Proceedings, acts or omissions (i) happening prior to the Asset Closing or (ii) arising out of any act or omission of Seller, ROC, their respective Affiliates or their respective Representatives in effecting the Business Closure or pursuant to the Lease; (c) all Liabilities relating to any employees of Seller, ROC or their respective Affiliates who work at the Hotel/Casino or the Property (collectively, the “Employees”), including (i) any payroll, wages and salaries, vacation days, sick days, personal days, and other compensation-related items, (ii) any obligations under or related to Seller Benefit Plans, including COBRA benefits, and (iii) any obligations under or relating to unfunded pension liabilities, pension trust fund liabilities, retirement plan obligations, severance obligations and bonus plans; (d) except for Liabilities for which Buyer is responsible pursuant to Section 7.6, all Liabilities for Taxes imposed in respect of the Assets or the Business for any Pre-Asset Closing Tax Period and any Liabilities for Taxes imposed on Seller in respect of the transactions contemplated hereby; (e) all Liabilities relating to the Excluded Assets; (f) all Liabilities arising out of or relating to the operation of the Business, including all Liabilities with respect to any and all gaming chips or tokens of the Business in circulation (including the redemption thereof in compliance with Gaming Laws), and poker, player club, progressive or other Liabilities, and any Proceedings, relating to the Business; (g) all Liabilities under the Contracts; (h) all Liabilities associated with debt, loans or credit facilities of Seller, Seller’s Affiliates and/or the Business; (i) all accounts payable of the Business; (j) to the extent not included in the foregoing provision of this Section 2.2, all costs and expenses incurred with respect to or in connection with, or arising out of, the Business Closure, including (i) all Business Closure Costs, and (ii) all costs and expenses related to compliance with, or payable as a result of, any Law applicable to conducting the Business Closure, including (A) any Losses suffered by any tenant or other third party as a result of the Business Closure (whether such Losses are suffered by such third party pursuant to a claim based on any right of condemnation, eminent domain, or otherwise) and (B) any amount due to third parties under applicable Law (including pursuant to NRS Chapter 342) in connection with the Transfer or the Business Closure; and (k) except as provided in Section 7.6, all Liabilities for Taxes arising out of or relating to (i) the Assets for any Pre-Asset Closing Tax Period and (ii) the Business. Notwithstanding the forgoing, to the extent that any Excluded Liability is a Business Closure Cost, Seller shall be entitled to satisfy such Excluded Liability from the Business Closure Escrow Amount; provided, that no federal, state, or local income Tax obligations of Seller or Seller’s Affiliates, whether arising from or attributable to ordinary income, capital gains, or otherwise, shall be satisfied from the Business Closure Escrow Amount.
Appears in 1 contract
Exclusion of Certain Liabilities. Notwithstanding anything contained in this Agreement Except for the Assumed Liabilities, Newco does not assume or agree to the contrarypay, perform or discharge, and shall not be responsible for, and the Assumed Liabilities shall do not include, andany other liabilities or obligations of Seller of any nature whatsoever, from and after the Asset Closingwhether accrued, Seller and its Affiliates shall retainabsolute, all Liabilities other than the Assumed Liabilities (the “Excluded Liabilities”)contingent or otherwise, including, without limitation, liabilities or obligations based on, arising out of or in connection with:
(a) except as provided in Section 2.1, (i) all Liabilities relating to any of the Assets accruing, liability or arising out of or relating to events, occurrences, pending or threatened Proceedings, acts or omissions happening prior to the Asset Closing and (ii) all Liabilities arising out of any act or omission obligation of Seller, ROC, their respective its Affiliates or their respective Representatives in effecting the Business Closure or not expressly included as an Assumed Liability pursuant to the LeaseSection 1.5;
(b) all Liabilities any product liability, tort liability, warranty claim, or similar claim for injury to person or property, regardless of when made or asserted, of any nature whatsoever, relating to any the operation of the Permitted Liens accruingBusiness prior to the Closing;
(c) except as set forth on Schedule 1.5, or arising out of or relating to events, occurrences, pending or threatened Proceedings, acts or omissions any taxes (i) happening payable with respect to the business, assets, properties, production or operations of Seller or the Business or any member of any affiliated group of which either is a member for any tax period or portion thereof prior to the Asset Closing or (ii) incident to or arising out as a consequence of the negotiation or consummation by Seller or any member of any act or omission affiliated group of Seller, ROC, their respective Affiliates or their respective Representatives in effecting the Business Closure or pursuant to the Lease;
(c) all Liabilities relating to any employees which Seller is a member of Seller, ROC or their respective Affiliates who work at the Hotel/Casino or the Property (collectively, the “Employees”), including (i) any payroll, wages this Agreement and salaries, vacation days, sick days, personal days, and other compensation-related items, (ii) any obligations under or related to Seller Benefit Plans, including COBRA benefits, and (iii) any obligations under or relating to unfunded pension liabilities, pension trust fund liabilities, retirement plan obligations, severance obligations and bonus plans;
(d) except for Liabilities for which Buyer is responsible pursuant to Section 7.6, all Liabilities for Taxes imposed in respect of the Assets or the Business for any Pre-Asset Closing Tax Period and any Liabilities for Taxes imposed on Seller in respect of the transactions contemplated hereby;
(d) any liability or obligation under or in connection with the assets excluded from the Assets under Section 1.3;
(e) all Liabilities relating any liability or obligation arising prior to the Excluded AssetsClosing to any employees, agents or independent contractors of Seller, whether or not employed by Newco after the Closing, or under any Benefit Plan (as defined in Section 2.10) or any liability or obligation of any nature related thereto;
(f) all Liabilities any obligations of Seller or the Business arising out or incurred in connection with any loan agreements or related instruments;
(g) any liability or obligation of Seller arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby and fees and expenses of counsel, accountants and other experts;
(h) any litigation, proceeding (whether regulatory or otherwise) or any contingent liability of any nature whatsoever relating to the operation of the Business, including all Liabilities with respect to any and all gaming chips or tokens of the Business in circulation (including the redemption thereof in compliance with Gaming Laws), and poker, player club, progressive or other Liabilities, and any Proceedings, relating ▇▇▇▇▇▇ prior to the Business;
(g) all Liabilities under Closing including, without limitation, the Contracts;
(h) all Liabilities associated with debt, loans or credit facilities of Seller, Seller’s Affiliates and/or the Businessclaims brought against ▇▇▇▇▇▇ by Aspen Electronics;
(i) all accounts payable any collective bargaining or similar agreement of the Business;Seller; or
(j) to the extent not included expect for those obligations set forth in the foregoing provision Sub-Sublease Agreement entered into between Newco and Battery Network, Inc. (a wholly-owned subsidiary of this Section 2.2, all costs and expenses incurred with respect to or in connection with, or arising out of, the Business Closure, including (i) all Business Closure Costs, and (ii) all costs and expenses related to compliance with, or payable as a result ofBBI), any Law applicable to conducting the Business Closure, including (A) any Losses suffered by any tenant liability or other third party as a result of the Business Closure (whether such Losses are suffered by such third party pursuant to a claim based on any right of condemnation, eminent domain, obligation under or otherwise) and (B) any amount due to third parties under applicable Law (including pursuant to NRS Chapter 342) in connection with the Transfer lease or the Business Closure; and
(k) except sublease of the real property known as provided in Section 7.6▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, all Liabilities for Taxes arising out of or relating to (i) the Assets for any Pre-Asset Closing Tax Period and (ii) the BusinessEscondido, California. Notwithstanding the forgoingthis Section 1.6, to the extent that any Excluded Liability is a Business Closure Cost, Seller Newco shall be entitled to satisfy such Excluded Liability from liable and responsible for all payments, performance or other obligations arising under the Business Closure Escrow Amount; provided, that no federal, state, or local income Tax obligations of Seller or Seller’s Affiliates, whether arising from or attributable to ordinary income, capital gains, or otherwise, shall be satisfied from the Business Closure Escrow AmountAssumed Liabilities.
Appears in 1 contract