Assumed Obligations At the Closing, Purchaser shall assume, and agree to satisfy and discharge as the same shall become due, (i) all trade accounts payable and accrued expenses that have been incurred in the ordinary course of Seller's business (excluding, for purposes of clarification and not limitation, any and all professional fees, costs and other expenses incurred by the Seller in connection with the negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby after October 31, 2003, all of which shall be governed by Section 14.4 hereof), (ii) Seller's liabilities and other obligations arising subsequent to the Closing under all contracts entered into by Seller in the ordinary course of its business (including open purchase orders) after the date hereof, and (iii) the obligations listed on Schedule 2.1(c) hereto (collectively the "Assumed Obligations"). Except as expressly set forth in this paragraph (c), Purchaser shall not assume or be responsible at any time for any liability, obligation, debt or commitment of Seller, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise, including but not limited to any liabilities, obligations, debts or commitments of Seller incident to, arising out of or incurred with respect to, this Agreement and the transactions contemplated hereby (except to the extent contemplated by Section 14.5 hereof). Without limiting the generality of the foregoing, Seller expressly acknowledges and agrees that Seller shall retain, and that Purchaser shall not assume or otherwise be obligated to pay, perform, defend or discharge, (a) any liability of Seller for Taxes, whether measured by income or otherwise, (b) any product liability pertaining to products sold by Seller prior to the Closing Date, (c) any liability or obligation of Seller relating to any default taking place before the Closing Date under any of the Assumed Obligations to the extent such default created or increased the liability or obligation, (d) any obligation of Seller to its shareholders, any Affiliate of Seller or its shareholders, or any Person claiming to have a right to acquire any capital stock or other securities of Seller, or (e) the Distribution Agreement by and between KMS and Seller effective as of September 26, 2002, together with any and all liabilities or obligations (including professional fees) arising out of or relating thereto or to any prior or subsequent agreements between the parties. All obligations which are not Assumed Obligations, including but not limited to the foregoing, are hereinafter referred to as the "Excluded Obligations."
DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS Among other indebtedness and obligations which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan arrangement dated as of June 11, 2003, evidenced by, among other documents, a certain Loan and Security Agreement dated as of June 11, 2003 between Borrower and Bank, as amended from time to time (as amended, the "Loan Agreement"). Capitalized terms used but not otherwise defined herein shall have the same meaning as in the Loan Agreement.
Excluded Liabilities Buyer shall not assume and shall not be responsible to pay, perform or discharge any of the following liabilities or obligations of Seller (collectively, the “Excluded Liabilities”):
Assumed Liabilities Subject to the terms and conditions set forth herein, Buyer shall assume and agree to pay, perform and discharge only the following Liabilities of Seller (collectively, the “Assumed Liabilities”), and no other Liabilities:
Retained Obligations Buyer does not assume or agree to discharge or perform and will not be deemed by reason of the execution and delivery of this Agreement or any agreement, instrument or document delivered pursuant to or in connection with this Agreement or otherwise by reason of the consummation of the transactions contemplated hereby, to have assumed or to have agreed to discharge or perform, any liabilities, obligations or commitments of Seller of any nature whatsoever whether accrued, absolute, contingent or otherwise and whether or not disclosed to Buyer, other than the Assumed Obligations (the "Retained Obligations").
Material Contracts and Obligations All agreements, contracts, leases, licenses, instruments, commitments (oral or written), indebtedness, liabilities and other obligations to which any Group Company is a party or by which it is bound that (i) are material to the conduct and operations of its business and properties; (ii) involve any of the officers, consultants, directors, employees or shareholders of any Group Company; or (iii) obligate any Group Company to share, license or develop any product or technology are listed in Section 3.12 of the Disclosure Schedule and have been provided to the Investor and its counsel. For purposes of this Section 3.12, “material” shall mean any agreement, contract, indebtedness, Liability, arrangement or other obligation either (i) having an aggregate value, cost, Liability or amount of RMB4,000,000 or more, or (ii) not terminable upon no more than thirty (30) days’ notice without penalty or obligation, or (iii) relating to the leased stores with a monthly rental of RMB300,000 or more and leased warehouses.
Excluded Assets and Liabilities Notwithstanding that this ------------------------------- Agreement relates to the purchase of capital stock from Seller by Purchaser, which results in the Company retaining any and all of its assets and liabilities, it is understood and agreed that Xxxxxx shall remove from the Company's premises prior to Closing and/or, as appropriate, remove from the Company's books and records, only those particular assets set forth on Schedule 1.3 hereto (the "EXCLUDED ASSETS"). Further, Xxxxxx shall assume any and all liabilities set forth on Schedule 1.3 hereto (the "EXCLUDED LIABILITIES"). Purchaser agrees that it shall cause Xxxxxx and the Company to execute any and all such bills of sale, deeds, assignments and/or agreements as may be necessary to transfer title to the Excluded Assets to Xxxxxx and to assign and/or transfer the Excluded Liabilities to Xxxxxx. The parties hereto further agree that no other assets of the Company, whether tangible or intangible, shall have been or shall be removed from the Company's premises or from the Company's books and records except in the ordinary course of the Company's Business as provided herein from and after December 31, 1995 through the Closing Date.
Existence and Amounts of Liens and Obligations Whenever any Applicable Collateral Agent or any Applicable Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Obligations of any Series, or the Shared Collateral subject to any Lien securing the First Lien Obligations of any Series, it may request that such information be furnished to it in writing by each other Representative or each other Collateral Agent and shall be entitled to make such determination or not make any determination on the basis of the information so furnished; provided, however, that if a Representative or a Collateral Agent shall fail or refuse reasonably promptly to provide the requested information, the requesting Applicable Collateral Agent or Applicable Representative shall be entitled to make any such determination or not make any determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Company. Each Applicable Collateral Agent and each Applicable Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any First Lien Claimholder or any other person as a result of such determination.
Assumed and Excluded Liabilities (a) The applicable Transferred Company shall assume and be responsible, from and after the Closing, for (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement, (ii) all Liabilities in respect of the Assigned Contracts and (iii) all Liabilities set forth on Annex 2.3(a) ((i), (ii) and (iii) collectively, the “Assumed Liabilities”) and (b) one or more members of Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset, whether incurred before, on or after the Closing, (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, except to the extent expressly assumed by Buyer under Section 6.6, (iii) all Taxes for which Seller is responsible under Section 6.5(a), (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than Liabilities relating to, arising out of or resulting from (x) the provision of ILEC Services as conducted on the date of this Agreement or as of the Closing, (y) any similar business conducted by the Transferred Companies prior to the date of this Agreement that would constitute an ILEC Service but for the date restrictions contained in the definition thereof or (z) the Transferred Companies’ historic wireline business conducted within the Territory), and (vi) all Liabilities set forth on Annex 2.3(b), whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”). For the avoidance of doubt, the Excluded Liabilities (other than clause (v) of the definition thereof) are not intended to create and expressly exclude any obligation of any member of the Seller Group to assume or be responsible for any Liability related to the infringement, misappropriation or other violation of any Intellectual Property rights.
Material Contracts and Transactions Other than as expressly contemplated by this Agreement, there are no material contracts, agreements, licenses, permits, arrangements, commitments, instruments, understandings or contracts, whether written or oral, express or implied, contingent, fixed or otherwise, to which Pubco is a party except as disclosed in writing to Priveco or as disclosed in the Pubco SEC Documents.
