Assumption of Assumed Liabilities Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
No Assumption No approvals or acceptances by, or on behalf of, TFC shall be deemed to be an assumption of any responsibility by TFC for any defect, error or omission in said Deliverables or Professional Services.
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.
No Assumption of Liabilities Notwithstanding anything in this Agreement or elsewhere to the contrary, no SNH Entity is assuming, and no SNH Entity shall be responsible for, any liability of any kind or nature whether known or unknown, absolute, mature or not yet due, liquidated or non-liquidated, contingent, non-contingent, direct or indirect or otherwise, of any Mariner Entity or any other person for:
(a) Any costs or expenses, including, but not limited to, legal fees, accounting fees, consulting and financing costs incurred by any Mariner Entity in negotiating this Agreement or in consummating the transactions contemplated hereby;
(b) Any claim as a result of any injury to any person arising out of the rendering of or failure to render services by any Mariner Entity or its or his employees, agents or representatives or any other person performing services for or on behalf of any Mariner Entity (i) with respect to the Retained Facilities, prior to the Effective Time and, subject to, and upon the terms and conditions contained in the Interim Management Agreement, after the Effective Time, and (ii) with respect to the Transferred Facilities or any other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time;
(c) Any liability to set off or recoupment (including set off or recoupment against Post-Effective Time accounts receivable) by any Third Party Payor by reason of any contractual claim, settlement, order or judgment retroactively adjusting the amounts payable for reimbursement purposes or recovering overpayments made or requiring the payment of fines, penalties or damages, or reduction of prospective payments to any Facility or interest, with respect to, or based upon, the services rendered by any Mariner Entity (i) with respect to the Retained Facilities, prior to the Effective Time and, subject to, and upon the terms and conditions contained in the Interim Management Agreement, after the Effective Time, and (ii) with respect to the Transferred Facilities or other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time, including liabilities that are subject to a stay ordered by the Court and liabilities that may be collected against the New Operator under state or Federal law;
(d) Any taxes owed by any Mariner Entity, including, but not limited to, any investment tax recapture, depreciation recapture, employer taxes such as F.I.C.A. and F.U.T.A., any sales or use taxes, any personal property taxes, any withholding taxes and any workers' compensation or unemployment insurance premiums or adjustments and, in the case of any Mariner Entity's employees or any of its affiliates' employees, relating to, or arising out of, such employee's employment at any Retained Facility prior to the Effective Time; and with respect to the Transferred Facilities or other operations of the Mariner Entities, both prior to, and after, the Effective Time;
(e) Any claim by any employee of any Mariner Entity for wages, salary, vacation, holiday, sick pay, welfare, or fringe benefits, relating to, or arising out of, such employee's employment prior to the Effective Time, except for those Employee Accruals assumed by the New Manager pursuant to Section 10.1 hereof and with respect to the Transferred Facilities or other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time;
(f) Any claim arising under any instrument, agreement, indenture, contract or understanding to which any Mariner Entity is a party or by which it or any of its property is bound, unless such instrument, agreement, indenture, contract or understanding is explicitly described and affirmed and assumed by the SNH Entities in this Agreement or is otherwise expressly affirmed and assumed by separate instrument in writing executed by SPTMNR; or
(g) Any claim, order or judgment otherwise arising out of the operation of any Facility or other operations of the Mariner Entities (except as otherwise expressly set forth herein but specifically including any claim, order or judgment arising under any applicable Federal, state or local statutes, laws, ordinances, rules and regulations, licensing requirements or conditions (including Medicare or Medicaid requirements or conditions, and environmental laws), or involving the imposition of any lien under any applicable law), in each case to the extent arising or attributable to conditions or events occurring prior to the Effective Time, and, subject to, and upon the terms and conditions contained in the Interim Management Agreement, after the Effective Time, and (ii) with respect to the Transferred Facilities or other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time.
No Assumption of Obligations These transfers and absolute assignments do not, and are not intended to, include any obligation of the Depositor or any Originator to the Obligors or any other Person relating to the Receivables and the other Depositor Transferred Property, and the Issuer does not assume any of these obligations.
Excluded Liabilities Notwithstanding anything to the contrary contained herein, Purchaser shall not assume any duties, obligations or liabilities of Seller of any kind, whether known, unknown, contingent or otherwise, other than the Transferred Liabilities, including any duty, obligation or liability:
(1) not directly relating to the Transferred Assets;
(2) attributable to any acts or omissions to act taken or omitted to be taken by or on behalf of Seller (or any of its Affiliates) prior to the Effective Time in violation of any applicable laws, contracts or legal or fiduciary duties;
(3) attributable to any actions, causes of action, claims, suits or proceedings or violations of law or regulation attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its affiliates or direct or indirect Subsidiaries);
(4) for (i) Taxes relating to the Transferred Assets or the Transferred Liabilities for taxable periods (or portions thereof) ending on or prior to the Closing Date and (ii) Taxes for which Seller is liable pursuant to Section 2.1(h);
(5) except as expressly set forth in Section 8.13, relating to the Employees in any respect, including the employment or termination of employment of any Employee, in the case of each Branch Employee relating to any period prior to the time such Branch Employee become employed by Purchaser as contemplated hereby, and relating to the Benefit Plans, ERISA, COBRA or the WARN Act in any respect, whether arising before or after the Effective Time (for avoidance of doubt, Excluded Liabilities include any duty, obligation or liability arising under the Seller Employment Agreements, the Parent Equity Incentive Plans, any contract listed on Schedule 6.8(b)(ii) or any plan listed on Schedule 6.8(b)(iii));
(6) arising from circumstances, events or conditions prior to the Effective Time and not expressly assumed hereunder; and
(7) all amounts due and payable to any Affiliate (collectively, the “Excluded Liabilities”). For avoidance of doubt, Excluded Liabilities shall include the Perryville Loan Liabilities, and Purchaser shall not be a successor to Seller with respect to any Perryville Loan Liabilities. This Section 2.1(f) is not intended to enlarge the rights of any third parties relating to the Excluded Liabilities. Nothing contained in this Agreement shall prevent either party hereto from contesting matters relating to the Excluded Liabilities with any third party.
Assets Not Purchased by Assuming Bank The Assuming Bank does not purchase, acquire or assume, or (except as otherwise expressly provided in this Agreement) obtain an option to purchase, acquire or assume under this Agreement:
(a) any financial institution bonds, banker's blanket bonds, or public liability, fire, or extended coverage insurance policy or any other insurance policy of the Failed Bank, or premium refund, unearned premium derived from cancellation, or any proceeds payable with respect to any of the foregoing;
(b) any interest, right, action, claim, or judgment against (i) any officer, director, employee, accountant, attorney, or any other Person employed or retained by the Failed Bank or any Subsidiary of the Failed Bank on or prior to Bank Closing arising out of any act or omission of such Person in such capacity, (ii) any underwriter of financial institution bonds, banker's blanket bonds or any other insurance policy of the Failed Bank, (iii) any shareholder or holding company of the Failed Bank, or (iv) any other Person whose action or inaction may be related to any loss (exclusive of any loss resulting from such Person's failure to pay on a Loan made by the Failed Bank) incurred by the Failed Bank; provided, that for the purposes hereof, the acts, omissions or other events giving rise to any such claim shall have occurred on or before Bank Closing, regardless of when any such claim is discovered and regardless of whether any such claim is made with respect to a financial institution bond, banker's blanket bond, or any other insurance policy of the Failed Bank in force as of Bank Closing;
(c) prepaid regulatory assessments of the Failed Bank, if any;
(d) legal or equitable interests in tax receivables of the Failed Bank, if any, including any claims arising as a result of the Failed Bank having entered into any agreement or otherwise being joined with another Person with respect to the filing of tax returns or the payment of taxes;
(e) amounts reflected on the Accounting Records of the Failed Bank as of Bank Closing as a general or specific loss reserve or contingency account, if any;
(f) leased or owned Bank Premises and leased or owned Furniture and Equipment and Fixtures and data processing equipment (including hardware and software) located on leased or owned Bank Premises, if any; provided, that the Assuming Bank does obtain an option under Section 4.6, Section 4.7 or Section 4.8, as the case may be, with respect thereto;
(g) owned Bank Premises which the Receiver, in its discretion, determines may contain environmentally hazardous substances;
(h) any "goodwill," as such term is defined in the instructions to the report of condition prepared by banks examined by the Corporation in accordance with 12 C.F.R. Section 304.4, and other intangibles;
(i) any criminal restitution or forfeiture orders issued in favor of the Failed Bank;
(j) reserved;
(k) assets essential to the Receiver in accordance with Section 3.6; and
(l) all private label asset-backed securities, including, but not limited to, those listed on the attached Schedule 3.5(l).
Retained Liabilities The Sellers shall retain liability to third parties for the following (the “Retained Liabilities”):
(a) liabilities arising from disposal off-site of the Facilities before the Closing Date of Hazardous Materials originating from the Facilities or the JWWTP (including without limitation with respect to the Star Lake Canal site, EPA ID TX0001414341) (the “Seller Off Site Disposal Liability”);
(b) fines and penalties imposed by Governmental Entities for violations before the Closing Date of Environmental Laws or Environmental Permits (the “Seller Environmental Fines and Penalties Liability”);
(c) liabilities, known or unknown, to the extent arising from the exposure before the Closing Date of any employee, former employee, Independent Contractor or former independent contractor of either Seller or other Person to Hazardous Materials from, at or on the Site or the other Assets (the “Seller Exposure Liability”);
(d) liabilities, known or unknown, to the extent arising from the MTBE that was manufactured, sold, processed, used or stored by the Sellers in conducting the Business before the Closing Date, excluding the Product Inventory comprised of MTBE conveyed to the Purchaser at the Closing (the “Seller MTBE Liability”);
(e) any obligation under (i) each Assumed Contract, related to the rights under each Assumed Contract assigned to the Purchaser under the Assignment and Assumption Agreement, (ii) each License of either Seller included in the Assets, and (iii) each JWWTP Agreement, related to the rights under each JWWTP Agreement assigned to the Purchaser under the Assignment (JWWTP Agreements); in each case clause (i), (ii) or (iii), required to be performed before the Closing Date; and any indebtedness of either Seller in respect of the Assets, to the extent not taken into account in the determination of Final Net Working Capital;
(f) physical or bodily injuries to, or damage to the property of, third parties that occurred before the Closing Date to the extent caused by the physical condition of the Assets;
(g) liabilities (including accounts payable) owed by either Seller to the other Seller or any Affiliate of the Sellers on or before the Closing Date in respect of the Business, the Facilities or any other Assets;
(h) liabilities for (i) Taxes of either Seller not related to or associated with the Business, the Facilities or the other Assets, (ii) Taxes related to or associated with the Business, the Facilities or the other Assets or the Assumed Liabilities for taxable periods (or portions thereof) ending on or before the Closing Date and (iii) payments under any Tax allocation, sharing or similar agreement (whether oral or written);
(i) liabilities for any indebtedness of either Seller or any Affiliate of either Seller with respect to borrowed money, including any interest or penalties accrued thereon;
(j) liabilities associated with, related to or arising from any Excluded Asset, excluding, in the case of an Excluded Asset that is the subject of, or owned or operated after the Closing Date pursuant to the terms of, a Commercial Agreement, the Purchaser’s liabilities and obligations with respect to such asset thereunder for matters attributable to operations and transactions during the period after the Closing, it being understood that the respective rights, obligations and liabilities of the Purchaser and the Seller party thereto with respect to such matters will be governed solely by the relevant Commercial Agreement;
(k) liabilities arising in connection with any Seller Benefit Plan or ERISA Affiliate Plan;
(l) liabilities under any of the CBAs or any other collective bargaining agreement or other labor arrangement, including any grievances, to the extent arising from any act or omission of either Seller or any Affiliate of either Seller before the Closing;
(m) liabilities set forth on Schedule 2.5(m), 4.10, or 4.11, in each case to the extent attributable to periods of time before the Closing Date; and
(n) all other liabilities (other than those the subject matter of clauses (a) through (m) above or that are the subject of the Sellers’ representations and warranties in Article IV and the Sellers’ covenants in Article VI), known or unknown, to the extent arising under current or prior applicable Law (except that, with respect to those liabilities arising under applicable common law, such liabilities shall be included without regard to whether there has been a change in the common law after the Closing) from the ownership, operation or use of the Business, the Facilities and the Assets, in each case, before the Closing Date, excluding, in the case of an Excluded Asset that is the subject of, or owned or operated after the Closing Date pursuant to the terms of, a Commercial Agreement, the Purchaser’s liabilities and obligations with respect to such asset thereunder for matters attributable to operations and transactions during the period after the Closing, it being understood that the respective rights, obligations and liabilities of the Purchaser and the Seller party thereto with respect to such matters will be governed solely by the relevant Commercial Agreement.
Liability of Seller Seller shall be liable in accordance herewith only to the extent of the obligations in this Agreement specifically undertaken by Seller and the representations and warranties of Seller.
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.
