Liabilities Assumed by Assuming Bank The Assuming Bank expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to pay, perform, and discharge all of the following liabilities of the Failed Bank as of Bank Closing, except as otherwise provided in this Agreement (such liabilities referred to as "Liabilities Assumed"):
(a) Assumed Deposits, except those Deposits specifically listed on Schedule 2.1(a); provided, that as to any Deposits of public money which are Assumed Deposits, the Assuming Bank agrees to properly secure such Deposits with such of the Assets as appropriate which, prior to Bank Closing, were pledged as security therefor by the Failed Bank, or with assets of the Assuming Bank, if such securing Assets, if any, are insufficient to properly secure such Deposits;
(b) liabilities for indebtedness secured by mortgages, deeds of trust, chattel mortgages, security interests or other liens on or affecting any Assets, if any; provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(c) borrowings from Federal Reserve Banks and Federal Home Loan Banks, if any, provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the assets securing such liability as determined by the Receiver; and overdrafts, debit balances, service charges, reclamations, and adjustments to accounts with the Federal Reserve Banks as reflected on the books and records of any such Federal Reserve Bank within ninety (90) days after Bank Closing, if any;
(d) ad valorem taxes applicable to any Asset, if any; provided, that the assumption of any ad valorem taxes pursuant to this paragraph shall be limited to an amount equal to the market value of the Asset to which such taxes apply as determined by the Receiver;
(e) liabilities, if any, for federal funds purchased, repurchase agreements and overdrafts in accounts maintained with other depository institutions (including any accrued and unpaid interest thereon computed to and including Bank Closing); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(f) United States Treasury tax and loan note option accounts, if any;
(g) liabilities for any acceptance or commercial letter of credit (other than "standby letters of credit" as defined in 12 C.F.R. Section 337.2(a)); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(h) duties and obligations assumed pursuant to this Agreement including without limitation those relating to the Failed Bank's credit card business, overdraft protection plans, safe deposit business, safekeeping business or trust business, if any;
(i) liabilities, if any, for Commitments;
(j) liabilities, if any, for amounts owed to any Subsidiary of the Failed Bank acquired under Section 3.1;
(k) liabilities, if any, with respect to Qualified Financial Contracts;
(l) duties and obligations under any contract pursuant to which the Failed Bank provides mortgage servicing for others, or mortgage servicing is provided to the Failed Bank by others; and
(m) all asset-related offensive litigation liabilities and all asset-related defensive litigation liabilities, but only to the extent such liabilities relate to assets subject to a loss share agreement, and provided that all other defensive litigation and any class actions with respect to credit card business are retained by the Receiver. Schedule 2.1 attached hereto and incorporated herein sets forth certain categories of Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in such categories. Such schedule is based upon the best information available to the Receiver and may be adjusted as provided in Article VIII.
Liabilities Not Assumed The Buyer shall not assume, and shall not be deemed to have assumed, any liabilities or obligations of the Seller of any kind or nature whatsoever, except as expressly provided in the Assumption Agreement (as defined hereafter) and in Section 2.03(a) above. Without limiting the generality of the foregoing, it is hereby agreed that the Buyer is not assuming any liability and shall not have any obligation for or with respect to:
(i) any liabilities or obligations of the Seller or the Group that arise under the terms of a contract, agreement, license, lease, sales order, purchase order, or other commitment that shall not be assigned, except as contemplated by Section 1.02 of this Agreement;
(ii) any liabilities or obligations of the Seller or the Group that arise under the terms of the ADSL Agreement or the Excluded Agreements set forth in item 4 of Schedule 1.01(e);
(iii) any liabilities or obligations of the Seller or the Group under any Plan (as defined in Section 3.01(s)), including (x) any obligation to adopt or to sponsor such Plan of the Seller except as the Buyer may, in its sole discretion, elect to adopt or to sponsor and (y) any deferred compensation benefits accrued as liabilities on the books of the Seller;
(iv) any obligation of the Seller or the Group arising out of any action, suit or proceeding based upon an event occurring or a claim arising (A) prior to or as of the Closing Date or (B) after the Closing Date in the case of claims in respect of products or services sold or provided by the Seller or the Group or the conduct of the Group Activity prior to the Closing Date and attributable to acts performed or omitted by the Seller or the Group prior to the Closing Date; and
(v) any and all liabilities or obligations for Taxes incurred by or imposed upon the Seller, or any predecessor company thereof, whether relating to periods, before, including or after the Closing Date, and any taxes arising from or with respect to the Assets or the operations of the Group Activity that are incurred or relate to any period prior to (or up to and including) the Closing Date, including, without limitation, any Taxes incurred by or imposed upon the Seller or the Group and arising out of the consummation of the transactions contemplated by this Agreement, as well as sales and use Taxes arising out of the transactions contemplated by this Agreement, whether such Taxes are imposed upon the Seller or the Buyer; provided, however, that sales and use Taxes resulting from the purchase and sale of the Assets hereunder shall be paid as provided in Section 4.06 below. (the liabilities described in the preceding clauses (i) through (v) being herein collectively called the "Excluded Liabilities").
Liabilities Assumed by Assuming Institution The Assuming Institution expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to pay, perform, and discharge all of the following liabilities of the Failed Bank as of Bank Closing, except as otherwise provided in this Agreement (such liabilities referred to as "Liabilities Assumed"):
(a) Assumed Deposits, except those Deposits specifically listed on Schedule 2.1(a); provided, that as to any Deposits of public money which are Assumed Deposits, the Assuming Institution agrees to properly secure such Deposits with such Assets as appropriate which, prior to Bank Closing, were pledged as security by the Failed Bank, or with assets of the Assuming Institution, if such securing Assets, if any, are insufficient to properly secure such Deposits;
(b) liabilities for indebtedness secured by mortgages, deeds of trust, chattel mortgages, security interests or other liens on or affecting any Assets, if any; provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(c) borrowings from Federal Reserve Banks and Federal Home Loan Banks, if any, provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the assets securing such liability as determined by the Receiver; and overdrafts, debit balances, service charges, reclamations, and adjustments to accounts with the Federal Reserve Banks as reflected on the books and records of any such Federal Reserve Bank within ninety (90) days after Bank Closing, if any;
(d) ad valorem taxes applicable to any Asset, if any; provided, that the assumption of any ad valorem taxes pursuant to this paragraph shall be limited to an amount equal to the market value of the Asset to which such taxes apply as determined by the Receiver;
(e) liabilities, if any, for federal funds purchased, repurchase agreements and overdrafts in accounts maintained with other depository institutions (including any accrued and unpaid interest thereon computed to and including Bank Closing); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(f) United States Treasury tax and loan note option accounts, if any;
(g) liabilities for any acceptance or commercial letter of credit (including any "standby letters of credit" as defined in 12 C.F.R. Section 337.2(a) issued on the behalf of any Obligor of a Loan acquired hereunder by the Assuming Institution, but excluding any other standby letters of credit); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(h) duties and obligations assumed pursuant to this Agreement including without limitation those relating to the Failed Bank's Records, credit card business, overdraft protection plans, safe deposit business, safekeeping business or trust business, if any;
(i) liabilities, if any, for Commitments;
(j) liabilities, if any, for amounts owed to any Subsidiary of the Failed Bank acquired under Section 3.1;
(k) liabilities, if any, with respect to Qualified Financial Contracts;
(l) duties and obligations under any contract pursuant to which the Failed Bank provides mortgage servicing for others, or mortgage servicing is provided to the Failed Bank by others, including (i) any seller obligations, including seller origination; and repurchase obligations, and (ii) any government sponsored enterprise (“GSE”) seller or servicer obligations, provided that, if the Assuming Institution is not an approved GSE servicer, or does not intend or is unable to become an approved GSE servicer, the Assuming Institution will cooperate with Receiver and the GSE to effect the transfer of any such servicing obligations to a GSE approved servicer; and
(m) all asset-related offensive litigation liabilities and all asset-related defensive litigation liabilities, but only to the extent such liabilities relate to assets subject to a shared-loss agreement, and provided that all other defensive litigation and any class actions with respect to credit card business are retained by the Receiver. Schedule 2.1 attached hereto and incorporated herein sets forth certain categories of Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in such categories. Such schedule is based upon the best information available to the Receiver and may be adjusted as provided in Article VIII.
Cooperation in Defense and Settlement Indemnitee shall not make any admission or effect any settlement of any Proceeding without the Company's written consent unless Indemnitee shall have determined to undertake his own defense in such matter and has waived the benefits of this Agreement. The Company shall not settle any Proceeding to which Indemnitee is a party in any manner which would impose any Expense on Indemnitee without his written consent. Neither Indemnitee nor the Company will unreasonably withhold consent to any proposed settlement. Indemnitee and the Company shall cooperate to the extent reasonably possible with each other and with the Company's insurers, in attempts to defend and/or settle such Proceeding.
LIABILITIES TO BE ASSUMED Subject to the terms and conditions of this Agreement, on the Closing Date, Buyer shall assume and agree to perform and discharge the following, and only the following Liabilities of the Seller (collectively the "Assumed Liabilities"):
Defense of Actions In any case in which any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not (so long as it shall continue to have the right to defend, contest, litigate and settle the matter in question in accordance with this paragraph) be liable to such indemnified party hereunder for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, supervision and monitoring (unless (i) such indemnified party reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to the defenses available to such indemnifying party, (ii) counsel to the indemnifying party has informed the indemnifying party that the joint representation of the indemnifying party and one or more indemnified parties could be inappropriate under applicable standards of professional conduct, or (iii) the indemnifying party shall have failed within a reasonable period of time to assume such defense and the indemnified party is or is reasonably likely to be prejudiced by such delay, in any such event the indemnified party shall be promptly reimbursed by the indemnifying party for the expenses incurred in connection with retaining separate legal counsel). An indemnifying party shall not be liable for any settlement of an action or claim effected without its consent (such consent not to be unreasonably withheld). The indemnifying party shall lose its right to defend, contest, litigate and settle a matter if it shall fail to diligently contest such matter (except to the extent settled in accordance with the next following sentence). No matter shall be settled by an indemnifying party without the consent of the indemnified party (which consent shall not be unreasonably withheld, it being understood that the indemnified party shall not be deemed to be unreasonable in withholding its consent if the proposed settlement imposes any obligation on the indemnified party).
Liabilities Assumed On the Closing Date, CNCO will assume and agree to pay, perform and discharge as and when due the liabilities and obligations, whether fixed, absolute or contingent, matured or unmatured, (the "Assumed Liabilities") relating to the Business as the same exist on the Closing Date which are specified below (provided, that in no event shall the Assumed Liabilities include any Retained Liabilities, and CNCO shall assume no other liabilities whatsoever of the Associated Subsidiaries or their Affiliates):
(i) all accounts payable and trade obligations to the extent relating to the Business, including those which are owed to the Associated Subsidiaries or their Affiliates which were incurred in the ordinary course of business;
(ii) all prepaid subscription and advertising obligations to the extent relating to the Business;
(iii) all liabilities and obligations arising from commitments (in the form of issued purchase orders or otherwise) to purchase or acquire inventory, supplies or services to the extent relating to the Business and reflected on a balance sheet of the Business as of the Closing Date as accounts payable or accrued expenses;
(iv) all liabilities and obligations under existing licenses, permits, authorizations, leases or contracts which are to be assigned to CNCO hereunder other than liabilities or obligations for breaches or defaults that occurred prior to the Closing;
(v) all liabilities or obligations for accrued but unpaid vacation pay, sick pay and holiday pay for Employees (as defined in Section 10.1) to the extent such pay is reflected in the Net Liabilities (as defined in Section 1.3(f)) of the Business as of the Effective Date; and
(vi) [Reserved]
(vii) all liabilities, other than Retained Liabilities (including Tax (as defined in Section 3.14) liabilities), which are reflected in the balance sheet included in the Financial Statements dated as of September 30, 1997 provided pursuant to Section 3.6 (except to the extent discharged prior to the Closing Date) or incurred by the Business since the date of such balance sheet not in breach of any representation or covenant in this Agreement and in the ordinary course of business which are of the type that would be reflected in a balance sheet prepared in conformity with GAAP and consistent with the Financial Statements.
Defense of Third Party Claims In the case of a Third-Party Claim, the Indemnifying Party shall have the right: (a) to control and conduct any proceedings or negotiations in connection therewith and necessary or appropriate to defend the claim, (b) to take all other reasonable steps or proceedings to settle or defend any such Third-Party Claim; provided, that the Indemnifying Party shall not settle any Third-Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned, or delayed), and (c) to employ counsel designated by the Indemnifying Party to contest any such Third-Party Claim in the name of the Indemnified Party or otherwise. The Indemnifying Party shall, within fifteen (15) days of receipt of a Third-Party Claim Notice (the “Indemnity Notice Period”), give written notice to the Indemnified Party of its intention to assume the defense of such Third-Party Claim. If the Indemnifying Party does not deliver to the Indemnified Party within the Indemnity Notice Period written notice that the Indemnifying Party shall assume the defense of any such Third-Party Claim, then the Indemnified Party may defend against any such Third-Party Claim in any such manner as it may deem appropriate, provided, that the Indemnified Party shall not settle any such Third-Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned, or delayed. In the event that the Indemnifying Party does assume the defense of such Third-Party Claim, the Indemnified Party shall have the right to fully participate in (but not control) such defense (including with counsel of its choice), at its sole expense, and the Indemnifying Party shall reasonably cooperate with the Indemnified Party in connection with such participation. In the event that either the Indemnifying Party or the Indemnified Party assumes the defense of a Third-Party Claim as provided above (the “Controlling Party”), the non-Controlling Party shall have the right to fully participate (but not control) in such defense (including with counsel of its choice), at its sole expense, and the Controlling Party shall reasonably cooperate with the non-Controlling Party in connection with such participation; provided, however, that Buyer and Seller shall each use its commercially reasonable efforts with respect to any information shared pursuant to this Section 7.3(b) to preserve attorney-client privilege.
Defense Costs No defense costs shall be included within or erode the limits of coverage of any of the insurance policies, except that litigation and mediation defense costs may be included within the limits of coverage of professional and pollution liability policies.
Non-Assumption of Liabilities Neither Party shall be liable for the prior, existing or future obligations, liabilities or debts of the other Party.
