ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS The Assuming Institution agrees with the Receiver and the Corporation as follows:
Assumption of Certain Liabilities On the terms and subject to the conditions set forth herein and in the Sale Order effective as of the Closing, Purchaser shall irrevocably assume from each Seller (and from and after the Closing pay, perform, discharge, or otherwise satisfy in accordance with their respective terms), and such Seller shall irrevocably transfer, assign, convey, and deliver to Purchaser, only the following Liabilities, without duplication (collectively, the “Assumed Liabilities”): (a) all Liabilities arising out of or relating to the ownership and operation of the Acquired Assets, Assigned Contracts or Acquired Businesses, arising at or after the Petition Date that are due and payable after the Closing (including, for the avoidance of doubt, accounts payable due and payable after the Closing); (b) all Liabilities (i) in respect of Transferred Employees arising at or after the Closing and (ii) assumed by Purchaser pursuant to Section 5.9; (c) all cure costs required to be paid pursuant to section 365 of the Bankruptcy Code in connection with the assumption and assignment of the Assigned Contracts (the “Cure Costs”); (d) any Liability for Taxes (including the payment thereof) attributable to the Acquired Assets for a taxable period (or portion thereof) beginning after the Closing Date (as determined pursuant to Section 5.11); (e) Transfer Taxes; and (f) subject to Purchaser’s further review, certain customer deposits to be identified by the Parties in good faith prior to the Closing.
Payments on Termination and Survival of Certain Rights and Obligations Payments to the Advisor pursuant to this Section 13.03 shall be subject to the 2%/25% Guidelines to the extent applicable. (i) After the Termination Date, the Advisor shall not be entitled to compensation for further services hereunder except it shall be entitled to receive from the Company within 30 days after the effective date of such termination (A) all unpaid reimbursements of expenses and all earned but unpaid fees payable to the Advisor prior to termination of this Agreement and (B) the Subordinated Performance Fee Due Upon Termination, provided that no Subordinated Performance Fee Due Upon Termination will be paid if the Company has paid or is obligated to pay the Subordinated Incentive Fee. (ii) The Advisor shall promptly upon termination: (a) pay over to the Company all money collected pursuant to this Agreement, if any, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled; (b) deliver to the Board a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board; (c) deliver to the Board all assets and documents of the Company then in the custody of the Advisor; and (d) cooperate with the Company to provide an orderly transition of advisory functions.
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 DBC (collectively, the "DBC Assumed Obligations"): (i) all of the obligations and liabilities of DBC under the DBC Assumable Agreements, and (ii) all obligations and liabilities of DBC with respect to the ownership and operation of the DBC Assets and the conduct of the DBC 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 DBC Nonassumed Obligations. (b) ATS shall not assume or become obligated to perform any debt, liability or obligation of DBC relating to any of the following matters (collectively, the "DBC Nonassumed Obligations"): (i) the ownership or operation of the DBC Assets or the conduct of the DBC Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of DBC (including without limitation any obligation to any DBC 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 DBC Assumable Agreements relating to the period prior to the Closing; (iii) any insurance policies of DBC; (iv) those required to be disclosed in the DBC Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the DBC 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 DBC 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 DBC'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 DBC not included in the DBC 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 DBC pursuant to the provisions of this Agreement or any Collateral Document; and (x) any Contract with any Affiliate of DBC, other than those, if any, set forth in Section 2(b)(x) of the DBC Disclosure Schedule. All DBC Nonassumed Obligations shall remain and be the obligations and liabilities solely of DBC. (c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the DBC 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 DBC employees) arising from the ownership or operation of the DBC Assets or the conduct of the DBC Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with DBC 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 DBC Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, DBC 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 DBC 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, DBC 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.
Survival of Certain Representations and Obligations The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to Section 8 or if for any reason the purchase of the Offered Securities by the Underwriters is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5 and the respective obligations of the Company and the Underwriters pursuant to Section 7 shall remain in effect, and if any Offered Securities have been purchased hereunder the representations and warranties in Section 2 and all obligations under Section 5 shall also remain in effect. If the purchase of the Offered Securities by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 8 or the occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(c), the Company will reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities.