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 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 and Obligations 33 6.8 Conformity with Law; Litigation.................................33 6.9 No Violations...................................................33 6.10
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"):
LIABILITIES AND INDEMNIFICATION SMC shall be liable for any actual losses, claims, damages or expenses (including any reasonable counsel fees and expenses) resulting from SMC's bad faith, willful misfeasance, reckless disregard of its obligations and duties, negligence or failure to properly perform any of its responsibilities or duties under this agreement. SMC shall not be liable and shall be indemnified and held harmless by the Fund, for any claim, demand or action brought against it arising out of, or in connection with:
A. Bad faith, willful misfeasance, reckless disregard of its duties or negligence of the Board of Directors of the Fund, or SMC's acting upon any instructions properly executed and authorized by the Board of Directors of the Fund;
B. SMC acting in reliance upon advice given by independent counsel retained by the Board of Directors of the Fund. In the event that SMC requests the Fund to indemnify or hold it harmless hereunder, SMC shall use its best efforts to inform the Fund of the relevant facts concerning the matter in question. SMC shall use reasonable care to identify and promptly notify the Fund concerning any matter which presents, or appears likely to present, a claim for indemnification against the Fund. The Fund shall have the election of defending SMC against any claim which may be the subject of indemnification hereunder. In the event the Fund so elects, it will so notify SMC and thereupon the Fund shall take over defenses of the claim, and (if so requested by the Fund, SMC shall incur no further legal or other claims related thereto for which it would be entitled to indemnity hereunder provided, however, that nothing herein contained shall prevent SMC from retaining, at its own expense, counsel to defend any claim. Except with the Fund's prior consent, SMC shall in no event confess any claim or make any compromise in any matter in which the Fund will be asked to indemnify or hold SMC harmless hereunder. PUNITIVE DAMAGES. SMC shall not be liable to the Fund, or any third party, for punitive, exemplary, indirect, special or consequential damages (even if SMC has been advised of the possibility of such damages) arising from its obligations and the services provided under this agreement, including but not limited to loss of profits, loss of use of the shareholder accounting system, cost of capital and expenses of substitute facilities, programs or services. FORCE MAJEURE. Anything in this agreement to the contrary notwithstanding, SMC shall not be liable for delays or errors occurring by reason of circumstances beyond its control, including but not limited to acts of civil or military authority, national emergencies, work stoppages, fire, flood, catastrophe, earthquake, acts of God, insurrection, war, riot, failure of communication or interruption.
ADVISER’S LIABILITIES AND INDEMNIFICATION (a) The Adviser shall have responsibility for the accuracy and completeness (and liability for the lack thereof) of the statements in the Fund’s offering materials (including the prospectus, the statement of additional information, and advertising and sales materials), except for information supplied by the administrator or the Trust or another third party for inclusion therein.
(b) The Adviser shall be liable to the Fund for any loss (including brokerage charges) incurred by the Fund as a result of any improper investment made by the Adviser in contradiction of the Investment Policies.
(c) In the absence of willful misfeasance, bad faith, negligence, or reckless disregard of the obligations or duties hereunder on the part of the Adviser, the Adviser shall not be subject to liability to the Trust or the Fund or to any shareholder of the Fund for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any security by the Fund. Notwithstanding the foregoing, federal securities laws and certain state laws impose liabilities under certain circumstances on persons who have acted in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the Trust, the Fund or any shareholder of the Fund may have under any federal securities law or state law.
(d) Each party to this Agreement shall indemnify and hold harmless the other party and the shareholders, directors, officers and employees of the other party (any such person, an “Indemnified Party”) against any loss, liability, claim, damage or expense (including the reasonable cost of investigating and defending any alleged loss, liability, claim, damage or expenses and reasonable counsel fees incurred in connection therewith) arising out of the Indemnified Party’s performance or non-performance of any duties under this Agreement; provided, however, that nothing herein shall be deemed to protect any Indemnified Party against any liability to which such Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of reckless disregard of obligations and duties under this Agreement.
(e) No provision of this Agreement shall be construed to protect any Trustee or officer of the Trust, or officer of the Adviser, from liability in violation of Sections 17(h) and (i) of the Investment Company Act.
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.
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.
Assumption of Liabilities and Obligations (a) At the Closing, ATS shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Liabilities If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full force and effect.
