Common use of Absence of Undisclosed Liabilities; Indebtedness Clause in Contracts

Absence of Undisclosed Liabilities; Indebtedness. (a) Neither Diacrin nor the Diacrin Subsidiary has any liability (accrued, contingent or otherwise and whether or not required to be reflected in financial statements in accordance with GAAP, and whether or not due or to become due), that is material to Diacrin taken as a whole, or that, when combined with all similar liabilities, would be material to Diacrin taken as a whole, except as Previously Disclosed in the Diacrin Financial Statements filed with the SEC prior to the date hereof and except for normal and recurring liabilities incurred in the ordinary course of business subsequent to December 31, 2002. (b) Section 2.9(b) of the Diacrin Disclosure Letter sets forth a complete and accurate list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of Diacrin or the Diacrin Subsidiary in an aggregate principal amount in excess of $50,000 is outstanding or may be incurred and the respective principal amounts outstanding thereunder as of the date of this Agreement. For purposes of this Section and Section 3.9, “indebtedness” means, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person or creditors for raw materials, inventory, services and supplies incurred in the ordinary course of business), (F) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person, and (J) all guarantees and arrangements having the economic effect of a guarantee by such person of any indebtedness of any other person. All of the outstanding indebtedness of the type described in this Section 2.9(b) may be prepaid at any time without the consent or approval of, or prior notice to, any other person, and without payment of any premium or penalty.

Absence of Undisclosed Liabilities; Indebtedness. (a) Neither Diacrin nor Except as set forth on Schedule 3.5 hereto, the Diacrin Subsidiary Company has any liability (accruedno direct or indirect indebtedness, contingent guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation, or otherwise and responsibility, whether fixed or not required to be reflected in financial statements in accordance with GAAPcontingent, and known or unknown, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured, whether or not due or to become due), that is material to Diacrin taken as a whole, due and whether arising out of transactions entered into or that, when combined with all similar liabilities, would be material to Diacrin taken as a whole, except as Previously Disclosed in the Diacrin Financial Statements filed with the SEC any condition or state of facts existing on or prior to the date hereof (collectively, "Liabilities") except, (a) Liabilities set forth on the Balance Sheet and except for normal and recurring liabilities incurred (b) Liabilities which have arisen after the date of the Balance Sheet Date in the ordinary course of business subsequent to December 31consistent with past practice, 2002. (b) Section 2.9(b) all of which are accurately and fairly reflected in the books and records of the Diacrin Disclosure Letter sets forth a complete Company and accurate list of all loan which will not, individually or credit agreementsin the aggregate, notes, bonds, mortgages, indentures and other agreements and instruments pursuant reasonably be expected to which any indebtedness of Diacrin or the Diacrin Subsidiary result in an aggregate principal amount in excess of $50,000 is adverse effect. Except as set forth on Schedule 3.5 hereto, the Company does not have any outstanding or may be incurred and the respective principal amounts outstanding thereunder as of the date of this Agreement. For purposes of this Section and Section 3.9, “indebtedness” means, with respect to any person, without duplication, (Aa) all obligations of such person indebtedness for borrowed money, or with respect to deposits or advances of any kind to such person, (Bb) all obligations of such person Liabilities evidenced by bonds, debentures, notes or other similar instruments, (Cc) all obligations Liabilities in respect of such person upon rent or other amounts due under a lease to which interest charges are customarily paidthe Company is a party that is required to be classified and accounted for as a capitalized lease under Netherlands GAAP, (Dd) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued Liabilities incurred or assumed as the deferred purchase price of property property, or services pursuant to conditional sale obligations (excluding obligations of such person or creditors for raw materials, inventory, services and supplies incurred trade accounts payable arising in the ordinary course of businessbusiness consistent with past practice), (Fe) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not Liabilities relating to the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person, and (J) all guarantees and arrangements having the economic effect of a guarantee by such person reimbursement of any indebtedness obligor on any letter of any other person. All of the outstanding indebtedness of the type described in this Section 2.9(b) may be prepaid at any time without the consent credit, banker's acceptance or approval ofsimilar credit transaction, or prior notice to(e) Liabilities in respect of guarantees by the Company of items referred to in clauses (a) through (d) above of other Persons (collectively, any other person, and without payment of any premium or penalty"Indebtedness"). There is no Indebtedness to Shareholders.

Absence of Undisclosed Liabilities; Indebtedness. (a) Neither Diacrin Except as set forth on Schedule 3.5 hereto, neither the Company nor the Diacrin any Subsidiary has any liability (accrueddirect or indirect indebtedness, contingent guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation, or otherwise and responsibility, whether fixed or not required to be reflected in financial statements in accordance with GAAPcontingent, and known or unknown, asserted or unasserted, choaxx xx inchoate, liquidated or unliquidated, secured or unsecured, whether or not due or to become due), that is material to Diacrin taken as a whole, due and whether arising out of transactions entered into or that, when combined with all similar liabilities, would be material to Diacrin taken as a whole, except as Previously Disclosed in the Diacrin Financial Statements filed with the SEC any condition or state of facts existing on or prior to the date hereof (collectively, "Liabilities") except, (a) Liabilities set forth on the Balance Sheet and except for normal and recurring liabilities incurred (b) Liabilities which have arisen after the date of the Balance Sheet Date in the ordinary course of business subsequent to December 31consistent with past practice, 2002. (b) Section 2.9(b) all of which are accurately and fairly reflected in the books and records of the Diacrin Disclosure Letter sets Company and which will not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. Except as set forth a complete and accurate list of all loan or credit agreementson Schedule 3.5 hereto, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which neither the Company nor any Subsidiary has any outstanding (a) indebtedness of Diacrin or the Diacrin Subsidiary in an aggregate principal amount in excess of $50,000 is outstanding or may be incurred and the respective principal amounts outstanding thereunder as of the date of this Agreement. For purposes of this Section and Section 3.9, “indebtedness” means, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (Bb) all obligations of such person Liabilities evidenced by bonds, debentures, notes or other similar instruments, (Cc) all obligations Liabilities in respect of such person upon rent or other amounts due under a lease to which interest charges are customarily paidthe Company or any Subsidiary is a party that is required to be classified and accounted for as a capitalized lease under Dutch GAAP, (Dd) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued Liabilities incurred or assumed as the deferred purchase price of property property, or services pursuant to conditional sale obligations (excluding obligations of such person or creditors for raw materials, inventory, services and supplies incurred trade accounts payable arising in the ordinary course of businessbusiness consistent with past practice), (Fe) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not Liabilities relating to the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person, and (J) all guarantees and arrangements having the economic effect of a guarantee by such person reimbursement of any indebtedness obligor on any letter of any other person. All of the outstanding indebtedness of the type described in this Section 2.9(b) may be prepaid at any time without the consent credit, banker's acceptance or approval ofsimilar credit transaction, or prior notice to(e) Liabilities in respect of guarantees by the Company or any Subsidiary of items referred to in clauses (a) through (d) above of other Persons (collectively, any other person, and without payment of any premium or penalty"Indebtedness").

Absence of Undisclosed Liabilities; Indebtedness. (a) Neither Diacrin Except (i) for liabilities set forth on Schedule 6.9(a), (ii) for liabilities reflected on the 2005 Balance Sheet or (iii) for liabilities incurred or accrued in the ordinary course of its business, consistent with past practice since December 31, 2005, (x) neither the Company nor the Diacrin Subsidiary any of its Subsidiaries has any liability material Indebtedness or liability, absolute or contingent; and (accruedy) neither the Company nor any of its Subsidiaries is liable upon or with respect to (by discount, contingent repurchase agreement or otherwise and whether otherwise), or not required obliged in any other way to be reflected provide funds in financial statements in accordance with GAAPrespect of, and whether or not due or to become due)make guarantees or assume, that is material to Diacrin taken as a wholeany debt, obligation or that, when combined with all similar liabilities, would be material to Diacrin taken as a wholedividend of any Person other than the Company or any of its Subsidiaries, except as Previously Disclosed in the Diacrin Financial Statements filed with the SEC prior to the date hereof and except for normal and recurring liabilities incurred endorsements in the ordinary course of business subsequent to December 31in connection with the deposit, 2002in banks or other financial institutions, of items for collection. (b) Section 2.9(bSchedule 6.9(b) of the Diacrin Disclosure Letter sets forth a true and complete and accurate list of all loan Indebtedness owing by the Company or credit agreements, notes, bonds, mortgages, indentures any of its Subsidiaries and other agreements and instruments pursuant to which any indebtedness of Diacrin or the Diacrin Subsidiary in an aggregate principal amount in excess of $50,000 is outstanding or may be incurred and the respective principal amounts outstanding thereunder as of the date hereof and any contracts or agreements related thereto, including the amount of this Agreement. For purposes of this Section principal and Section 3.9unpaid interest outstanding under each instrument evidencing such Indebtedness. (c) Except as set forth on Schedule 6.9(c), “indebtedness” means, with respect no contract or agreement relating to any person, without duplicationIndebtedness owing by the Company or any of its Subsidiaries contains any restriction upon (i) the prepayment of such Indebtedness, (Aii) all obligations the incurrence of such person Indebtedness by the Company or any of its Subsidiaries or (iii) the ability of the Company or any of its Subsidiaries to grant any Lien on the assets of the Company or any of its Subsidiaries. (d) As at Closing, there will be no Indebtedness for borrowed moneymoney owing by the Company or any of its Subsidiaries, or with respect to deposits or advances of any kind to such person, other than (Bi) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person or creditors for raw materials, inventory, services and supplies incurred set forth in the ordinary course Company Indebtedness Amount Certificate and (ii) Intercompany Liabilities. (e) Schedule 6.9(e) sets forth a true and complete list of business), (F) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued by JX Xxxxxx Cxxxx at the request of Leucadia on behalf of the Company and for the account benefit of Verizon pursuant to the Verizon Settlement Agreement (the “Leucadia Letters of Credit”), including the principal amount outstanding under each such personletter of credit as of April 30, 2006. (f) Schedule 6.9(f) sets forth the accrued and (J) all guarantees and arrangements having the economic effect unpaid Reorganization Costs as of a guarantee by such person of any indebtedness of any other person. All of the outstanding indebtedness of the type described in this Section 2.9(b) may be prepaid at any time without the consent or approval ofDecember 31, or prior notice to, any other person, and without payment of any premium or penalty2005.

Absence of Undisclosed Liabilities; Indebtedness. (a) Neither Diacrin nor the Diacrin Subsidiary has Cyclis does not have any liability (accrued, contingent or otherwise and whether or not required to be reflected in financial statements in accordance with GAAP, and whether or not due or to become due), that is material to Diacrin Cyclis taken as a whole, or that, when combined with all similar liabilities, would be material to Diacrin Cyclis taken as a whole, except as Previously Disclosed in the Diacrin Cyclis Financial Statements filed with or in the SEC prior to the date hereof Cyclis Disclosure Letter and except for normal and recurring liabilities incurred in the ordinary course of business subsequent to December 31, 2002. (b) Section 2.9(b2.8(b) of the Diacrin Cyclis Disclosure Letter sets forth a complete and accurate list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness Indebtedness of Diacrin or the Diacrin Subsidiary Cyclis in an aggregate principal amount in excess of $50,000 is outstanding or may be incurred and the respective principal amounts outstanding thereunder as of the date of this Agreement. For purposes of this Section and Section 3.92.8(b), “indebtednessIndebtedness” means, with respect to any personPerson, without duplication, (A) all obligations of such person Person for borrowed money, or with respect to deposits or advances of any kind to such personPerson, (B) all obligations of such person Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person Person upon which interest charges are customarily accrued or paid, (D) all obligations of such person Person under conditional sale or other title retention agreements relating to property purchased by such personPerson, (E) all obligations of such person Person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person Person or creditors for raw materials, inventory, services and supplies incurred in the ordinary course of business), (F) all capitalized lease obligations of such personPerson, (G) all obligations of others secured by any lien on property or assets owned or acquired by such personPerson, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person Person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such personPerson, and (J) all guarantees and arrangements having the economic effect of a guarantee by such person Person of any indebtedness of any other personPerson. All of the outstanding indebtedness of the type described in this Section 2.9(b2.8(b) may be prepaid at any time without the consent or approval of, or prior notice to, any other personPerson, and without payment of any premium or penalty.