Payment of Liabilities (a) On each Business Day, the Agent shall apply the then collected balance of the Concentration Account (net of fees charged, and of such impressed balances as may be required by the bank at which the Concentration Account is maintained) on the day following the receipt of such funds: First, towards the SwingLine Loans and Second, towards the unpaid balance of the Loan Account and all other Liabilities.
(b) The following rules shall apply to deposits and payments under and pursuant to this Section 8.5:
(i) Funds shall be deemed to have been deposited to the Concentration Account on the Business Day on which deposited, provided that notice of such deposit is available to the Agent by 2:00PM on that Business Day.
(ii) Funds paid to the Agent, other than by deposit to the Concentration Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that notice of such payment is available to the Agent by 2:00PM on that Business Day.
(iii) If notice of a deposit to the Concentration Account (Section 8.5(b)(i)) or payment (Section 8.5(b)(ii)) is not available to the Agent until after 2:00PM on a Business Day, such deposit or payment shall be deemed to have been made at 9:00AM on the then next Business Day.
(iv) All deposits to the Concentration Account and other payments to the Agent are subject to clearance and collection.
(c) The Agent shall transfer to the Operating Account any surplus in the Concentration Account remaining after any application towards the Liabilities required by Section 8.5(a), above (less those amounts which are to be netted out, as provided therein) provided, however, in the event that
(i) an Event of Default has occurred and is continuing; and
(ii) one or more L/Cs are then outstanding, then the Agent may establish a funded reserve of up to 105% of the aggregate Stated Amounts of such L/Cs. Such funded reserve shall either be (i) returned to the Borrower provided that the Borrower is not In Default or (ii) applied towards the Liabilities following the occurrence of any Event of Default described in Section 11.11 or acceleration following the occurrence of any other Event of Default.
Payment of Liabilities, Including Taxes, Etc Each Loan Party shall, and shall cause each of its Subsidiaries to, duly pay and discharge all liabilities to which it is subject or which are asserted against it, promptly as and when the same shall become due and payable, including all taxes, assessments and governmental charges upon it or any of its properties, assets, income or profits, prior to the date on which penalties attach thereto, except to the extent that such liabilities, including taxes, assessments or charges, are being contested in good faith and by appropriate and lawful proceedings diligently conducted and for which such reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made.
Allocation of Liabilities The IMS Health Group shall assume all Liabilities with respect to awards granted to IMS Health Employees, IMS Health Retirees, Corporation Retirees and IMS Health Disabled Employees pursuant to the IMS Health Replacement Option Plan. The Corporation Group shall retain all other Liabilities with respect to awards granted pursuant to the Corporation Stock Option Plans (including, but not limited to, awards granted to Corporation Post-Distribution Employees).
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.
STATEMENT OF LIABILITY The State will demonstrate reasonable care but shall not be liable in the event of loss, destruction, or theft of contractor-owned items to be delivered or to be used in the installation of deliverables. The contractor is required to retain total liability until the deliverables have been accepted by the “authorized agency official.” At no time will the State be responsible for or accept liability for any contractor- owned items.
Absence of Liabilities Except as set forth in the Financial Statements, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business, that individually or in the aggregate are not material to the financial condition or operating results of the Company, and (ii) obligations not required under generally accepted accounting principles to be reflected in the Financial Statements.
Assumption and Satisfaction of Liabilities Except as otherwise specifically set forth in any Ancillary Agreement from and after the Effective Time, (a) Tyco shall, or shall cause a member of the Tyco Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms (“Assume”), all of the Tyco Retained Liabilities, (b) Healthcare shall, or shall cause a member of the Healthcare Group to, Assume all the Healthcare Liabilities and (c) Electronics shall, or shall cause a member of the Electronics Group to, Assume all the Electronics Liabilities, in each case, regardless of (i) when or where such Liabilities arose or arise, (ii) whether the facts upon which they are based occurred prior to, on or subsequent to the Effective Time, (iii) where or against whom such Liabilities are asserted or determined or (iv) whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Tyco Group, the Healthcare Group or the Electronics Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates.
Satisfaction of Liabilities The liquidators shall pay, satisfy or discharge from Company funds all of the debts, liabilities and obligations of the Company (including, without limitation, all expenses incurred in liquidation) or otherwise make adequate provision for payment and discharge thereof;
Novation of Liabilities (a) Each Party, at the request of another Party, shall use best efforts to obtain, or to cause to be obtained, any Consent, substitution or amendment required to novate or assign all obligations under Contracts, licenses and other obligations or Liabilities for which a member of such Party’s Group and a member of another Party’s Group are jointly or severally liable and that do not constitute Liabilities of such other Party as provided in this Agreement (such other Party, the “Other Party”), or to obtain in writing the unconditional release of all parties to such arrangements (other than any member of the Group who Assumed or retained such Liability as set forth in this Agreement), so that, in any such case, the members of the applicable Group will be solely responsible for such Liabilities; provided, however, that no Party shall be obligated to pay any consideration therefor to any third party from whom any such Consent, substitution or amendment is requested (unless such Party is fully reimbursed by the requesting Party).
(b) If the Parties are unable to obtain, or to cause to be obtained, any such required Consent, release, substitution or amendment, the Other Party or a member of such Other Party’s Group shall continue to be bound by such Contract, license or other obligation that does not constitute a Liability of such Other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party’s Group who Assumed or retained such Liability as set forth in this Agreement (the “Liable Party”) shall, or shall cause a member of its Group to, pay, perform and discharge fully all the obligations or other Liabilities of such Other Party or member of such Other Party’s Group thereunder from and after the Effective Time. The Liable Party shall indemnify each Other Party and hold each of them harmless against any Liabilities (other than Liabilities of such Other Party) arising in connection therewith; provided, that the Liable Party shall have no obligation to indemnify any Other Party with respect to any matter to the extent that such Other Party has engaged in any knowing violation of Law, fraud or misrepresentation in connection therewith. The Other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or to another member of the Liable Party’s Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such Other Party pursuant to this Agreement). If and when any such Consent, release, substitution or amendment shall be obtained or such agreement, lease, license or other rights or obligations shall otherwise become assignable or able to be novated, the Other Party shall promptly Transfer all rights, obligations and other Liabilities thereunder of any member of such Other Party’s Group to the Liable Party or to another member of the Liable Party’s Group without payment of any further consideration and the Liable Party, or another member of such Liable Party’s Group, without the payment of any further consideration, shall Assume such rights and Liabilities.
(c) If the Liable Party (i) suffers a downgrade to its senior debt credit rating to below BB (as rated by Standard & Poor’s) or (ii) no longer has its debt securities rated by any nationally recognized credit rating agencies, then, upon the demand of the Other Party, such Liable Party shall be required to post an irrevocable letter of credit or similar security obligation reasonably acceptable to the Other Party in an amount reasonably necessary to provide security to the Other Party for the Liable Party’s obligations pursuant to Section 2.9(b); provided, however, that the foregoing shall not apply with respect to Assumed Tyco Contingent Liability. For the avoidance of doubt, the posting of such a letter of credit or similar security obligation shall in no event relieve the issuing Party’s obligations pursuant to Section 2.9(b), and shall not result in a cap or limitation on such Party’s Liabilities with respect thereto.
Existence and Amounts of Liens and Obligations Whenever a 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 Senior Secured Obligations (or the existence of any commitment to extend credit that would constitute Senior Secured Obligations) or Junior Secured Obligations, or the existence of any Lien securing any such obligations, or the Collateral subject to any such Lien, it may request that such information be furnished to it in writing by the other Representative and shall be entitled to make such determination on the basis of the information so furnished; provided, however, that if a Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Representative shall be entitled to make any such determination by such method as it may, in the exercise its good faith judgment, determine, including by reliance upon a certificate of the Company. Each 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 the Company or any of its subsidiaries, any Secured Party or any other person as a result of such determination.
