DLLR » Topics » Retained Liabilities

This excerpt taken from the DLLR 8-K filed Mar 11, 2005.
Retained Liabilities”), including, without limitation, any of the following: (a) any indebtedness for borrowed money of the Seller or of any other Person guaranteed by the Seller or any other Person or secured by any of the Purchased Assets; (b) any of the Seller’s accounts payable; (c) any Liabilities arising out of any breach by the Seller of any provision of any Contract; (d) any product liability or similar claim for injury to any Person or property, regardless of when made or asserted, that arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by the Seller, or alleged to have been made by the Seller, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or product sold or leased by or on behalf of the Seller on or before the Closing Date; (e) any Taxes including, without limitation, any Liabilities on account of the matters disclosed on Schedule 3.20; (f) any Liabilities of the Seller arising or incurred in connection with the negotiation, execution and performance of this Agreement, the other Transaction Documents and the Transactions including, without limitation, any fees and

 

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expenses of counsel, accountants and other experts engaged or retained by the Seller in connection therewith except as otherwise provided herein or therein; (g) any Environmental Liabilities; (h) any litigation against the Seller or any of its Affiliates  including, without limitation, any Liabilities on account of the litigation listed on Schedule 3.5; (i) any violations, or noncompliance with, of any Requirement of Law by the Seller or any Affiliate of the Seller including, without limitation, any Franchising Laws including, without limitation, any Liabilities on account of the matters disclosed on Schedule 3.7; (j) all Liabilities in respect of employment with the Seller for any wages, salary, vacation pay, sick leave pay or pay for time not worked, back pay, severance or termination pay and any other compensation, Taxes or arising in connection with or related to any Employee Benefit Plans including, without limitation, pursuant to COBRA; (k) any Liabilities of the Seller arising under any of the Franchise Repurchase Agreements other than the Franchise Repurchase Obligations expressly assumed by the Purchaser pursuant to Section 2.10(b); (l) any Liabilities of the Seller arising out of the Seller’s operation of any “We the People” center or franchise, whether before or after the Closing Date; (m) all Liabilities of the Seller arising under any of the CLC Agreements; (n) all Liabilities of the Seller arising under any Excluded Contract; (o) the Retained Franchising Contracts Liabilities; (p) all Liabilities arising as a result of the Seller’s grant to any Person of any rights to use any of the Seller’s Trademarks in any territory in violation or contravention of the rights of any other Person including, without limitation, on account of the matters described on Schedule 3.28(n); and (q) all other Liabilities of the Seller or arising out of the operations of the Seller or the Purchased Assets including, without limitation, for any civil or criminal damages or penalties (including punitive and exemplary damages and interest), imposed on or sought to be imposed on the Seller or the Purchaser or any of the officers, directors, members or stockholders of the Purchaser, on account of any tortious, fraudulent, criminal or other act of the Seller, either Shareholder or any of their respective directors, officers members or stockholders.  Without limitation to the foregoing, the intent and objective of the Seller and the Purchaser is that, except for Assumed Liabilities, the Purchaser does not assume, and no transferee or successor liability of any kind and nature shall attach to the Purchaser pertaining to, any of the Retained Liabilities, all of which Retained Liabilities shall be the sole responsibility of the Seller.

 

2.12                           Certain Employee Matters.  Neither the Purchaser nor any of its Affiliates is under any obligation to employ any person in connection with the acquisition of the Purchased Assets.  If the Purchaser or any of the Purchaser’s Affiliates desires to hire any employee of the Seller, then the Purchaser shall notify the Seller of the identity of that employee, and the Seller shall cooperate with the Purchaser or the applicable Affiliate to facilitate the hiring of that employee by the Purchaser or the applicable Affiliate.  Any offer of employment to any such Person may, but need not be (a) for the same position as that he or she held with the Seller immediately before the Closing, or (b) at the same rate of compensation as paid by the Seller to such Person immediately before the Closing.  All such offers of employment and the actual employment of any such Person shall, at all times, be subject to the Purchaser’s or the applicable Affiliate’s right, in its sole discretion, to establish and modify, from time to time, the terms and conditions of its employees’ employment and to terminate such employment at any time.  Except as the Purchaser or the applicable Affiliate may otherwise expressly agree in writing, any former employee of the Seller hired by the Purchaser or any of the Purchaser’s Affiliates shall be treated as a new, at-will employee of the Purchaser or the applicable Affiliate.  If and to the extent required, the Seller shall provide all notifications required by any Requirement of Law to each of the Seller’s employees who are not offered employment by the Purchaser or any of its Affiliates

 

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or who do not accept the Purchaser’s or any of its Affiliates’ offer of employment and whose employment with the Seller is terminated on or after the Closing Date including, without limitation, all notifications required under COBRA. 

 

2.13                           Certain Transitional Matters.  Notwithstanding anything to the contrary contained in this Agreement, the Bill of Sale or the Assignment and Assumption Agreement, to the extent that the sale, assignment, transfer, or delegation by any Seller, or the undertaking or assumption by the Purchaser, of any of the Purchased Assets or the Assumed Liabilities requires the Consent of any third party, this Agreement, the Bill of Sale and the Assignment and Assumption Agreement shall constitute the Seller’s agreement to sell, assign, transfer, and delegate, and the Purchaser’s agreement to purchase, acquire, and assume, the Purchased Assets and the Assumed Liabilities as promptly as practicable following the obtainment of any necessary Consent; provided, that from and after the Closing Date until the date on which such Consent is obtained, the Seller shall (and the Shareholders shall cause the Seller to) make available to the Purchaser the economic and practical benefits of such Purchased Assets and Assumed Liabilities for no additional consideration.  If and to the extent that the Seller is making available to the Purchaser the economic and practical benefits of such Purchased Assets, the risk of loss for such Purchased Assets shall rest with the Purchaser.  Nothing contained in this Section 2.13 is intended to impair, reduce or otherwise modify any representation, warranty and covenant contained in the this Agreement including, without limitation, those relating to any of the Purchased Assets or to any of the Assumed Liabilities.

 

2.14                           Pro-Rations.  To the extent that the Purchaser shall make any payment(s) on account of any rents, real estate taxes, personal property taxes, water, utilities and other operating expenses of the Business that are attributable, in whole or in part, to a period which includes a period of time prior to the Closing Date, the Seller shall, within ten (10) days after the Seller’s receipt of the Purchaser’s statement therefor pay to the Purchaser an amount equal to the payment(s) made on account of such items which are attributable to the period of time on or prior to the Closing Date.

 

This excerpt taken from the DLLR 8-K filed Feb 4, 2005.
Retained Liabilities), including:

 

(a)           Liabilities for accounts payables, or trade indebtedness, indebtedness to banks and other financial institutions, or to stockholders, members or affiliates;

 

(b)           Liabilities in respect of employment with any of the Sellers for any wages, salary, vacation pay, sick leave pay or pay for time not worked, back pay,

 

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severance or termination pay or other compensation, Taxes or arising in connection with or related to any Employee Benefit Plan, if any, including, pursuant to COBRA;

 

(c)           Liabilities relating to Taxes;

 

(d)           except to the extent arising from or relating to any actions or conditions which first occur or exist after the Closing Date with respect to the Buyer’s operation of the Branches, all Liabilities of any Seller relating to any condition with respect to contamination of air, soil, surface or ground waters, and all other environmental media at any real property ever owned, leased or operated by any of Sellers including any of the Branches;

 

(e)           Liabilities relating to personal injury or property damage or relating to goods and services sold prior to the Closing Date and alleged by third parties to be defective, including all tort claims and claims seeking special or consequential damages attributable to allegedly defective goods, materials or services supplied by any of Sellers;

 

(f)            any Liabilities relating to any Seller’s failure to comply with any Requirement of Law prior to the Closing;

 

(g)           any Liabilities relating to any of the matters identified on either of Schedule 5.14 or Schedule 5.15(2) and

 

(h)           any other Liabilities of any Seller or arising out of the operations of any Seller or the Purchased Assets including for any civil or criminal damages or penalties (including punitive and exemplary damages allowed by law and interest), imposed on or sought to be imposed on any Seller or the Buyer or any of the officers, directors, members or stockholders of the Buyer, on account of any tortious, fraudulent, criminal or other act of any Seller or any of their respective officers, directors, members or stockholders.

 

Without limitation to the foregoing, the intent and objective of the Sellers, the Members and the Buyer is that, except for the Assumed Liabilities, the Buyer does not assume, and no transferee or successor liability of any kind and nature shall attach to the Buyer pertaining to, any of the Retained Liabilities, if any, all of which Retained Liabilities shall be the sole responsibility of and paid by the Sellers.

 

4.3           Certain Employee Matters.  Before the Closing Date, the Buyer has made offers of employment to the contract employees of each Seller who provide services for and on behalf of such Seller’s Business, all of which employees are listed on Schedule 4.3 (collectively, the “

EXCERPTS ON THIS PAGE:

8-K
Mar 11, 2005
8-K
Feb 4, 2005
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