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.
Payment of Liabilities (a) On each Business Day, the Administrative 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) first, against the SwingLine Loans (if any), and second, against the unpaid balance of the Loan Account and all other Liabilities, provided, that if and so long as the Excess Availability Ratio is greater than 50% for five (5) consecutive Business Days, the Borrowers’ Representative may instruct the Administrative Agent to apply such amounts to the outstanding principal balance of the Last Out Revolving Loans, in which case the Administrative Agent shall apply such amounts to the Last Out Revolving Loans until all Last Out Revolving Loans have been repaid in full. For purposes of the calculation of interest on the unpaid principal balance of the Loan Account, such payment shall be deemed to have been made one (1) Business Day after such transfer, and further provided that until the occurrence, and during the continuance, of an Event of Default, unless the Borrower Representative otherwise instructs the Administrative Agent, the balance of the Concentration Account shall not be applied to any LIBOR Loans until the end of the applicable Interest Period therefor.
(b) The following rules shall apply to deposits and payments under and pursuant to this Section 7.5:
(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 delivered to the Administrative Agent by 2:00 PM on that Business Day.
(ii) Funds paid to the Administrative 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 delivered to the Administrative Agent by 2:00 PM on that Business Day.
(iii) If notice of a deposit to the Concentration Account (Section 7.5(b)(i)) or payment (Section 7.5(b)(ii)) is not delivered to the Administrative Agent until after 2:00 PM on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 AM on the then next Business Day.
(iv) All deposits to the Concentration Account and other payments to the Administrative Agent are subject to clearance and collection.
(c) The Administrative Agent shall transfer to the Operating Account any surplus in the Concentration Account remaining after the application towards the Liabilities referred to in Section 7.5(a) above (less those amount which are to be netted out, as provided therein) provided, however, in the event that
(i) a Default has occurred and is continuing; and
(ii) one or more L/C’s are then outstanding. then the Administrative Agent may establish a funded reserve of up to 110% of the aggregate of the Stated Amounts of such L/C’s. Such funded reserve shall either be (i) returned to the Borrowers’ Representative at such time that no Default has occurred and is continuing or (ii) applied towards the Liabilities following Acceleration.
WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT I, , IN CONSIDERATION of being permitted to participate in any way in the Rocky Mountain Cycling Club 360 km brevet calendared for July 13, 2024 (“Activity”), I hereby acknowledge, agree, attest and represent the following:
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.
Assumption of Liabilities Upon the terms and subject to the conditions of this Agreement, Buyer agrees, effective on the Effective Date, to assume the following liabilities and obligations of Seller (the "ASSUMED LIABILITIES"):
(a) all liabilities and obligations of Seller arising with respect to post-Closing periods under (i) the Contracts listed on Schedule 2.02(a) attached hereto, (ii) Contracts entered into by Seller with subscribers in the ordinary course of business prior to the Closing and (iii) any other Contracts entered into by Seller with the consent of Buyer (which consent is not to be unreasonably withheld or delayed) in the ordinary course of business prior to the Closing (but excluding in all of the foregoing cases any liabilities or obligations attributable to any failure by Seller to comply with the terms thereof);
(b) liabilities set forth on the Closing Statement to refund the security deposits to the customers who are entitled to receive same in accordance with the terms of their service contract, provided that the aggregate amount of liabilities assumed hereunder does not exceed the aggregate liability for such amount set forth in the Closing Statement ("CLOSING DEPOSIT LIABILITIES");
(c) liabilities set forth on the Closing Statement for unearned revenue, provided that the aggregate amount of liabilities assumed hereunder does not exceed the aggregate liability for such amount set forth in the Closing Statement ("CLOSING UNEARNED REVENUE LIABILITIES");
(d) liabilities which relate to periods on or after the Effective Date in respect of which prorations are made under Section 2.08 and liabilities which relate to periods prior to the Effective Date for which Seller has paid Buyer; and
(e) subject to Section 8.02, any liability or obligation for Taxes arising from or with respect to the Purchased Assets, the System or the System Operations which is incurred in or attributable to any Post-Closing Tax Period.