Common use of Assumption of Certain Obligations Clause in Contracts

Assumption of Certain Obligations. Buyer shall not, by the execution, delivery and performance of this Agreement, assume, be bound by or otherwise be responsible for any liability or obligation of Seller of any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whatsoever whether arising out of occurrences prior to, at or after the date hereof, with reference to the Assets except those obligations assumed by Buyer under those certain licenses. Without limiting the foregoing, it is understood that Buyer does not assume, undertake or accept any obligations, duties, responsibilities or liabilities of Seller that now exist or may arise in the future with respect to matters occurring on or prior to the Closing (a) to any contract which does not relate expressly to the Masters; (b) to any employee or former employee of Seller or any of such employee's beneficiaries, heirs or assigns, arising out of such employee's or former employee's employment by Seller, or out of the transactions contemplated by this Agreement; (c) with respect to (i) any income, profits, property, excise or similar taxes (it being understood that Seller shall pay and be responsible for any and all taxes related to the operations of the Business through the Closing), or (ii) any claims for any personal injuries, property damage or consequential damage relating to products sold or manufactured by Seller on or prior to the Closing; (d) under any statutes, rule, regulation, code or ordinance, including, but not limited to, civil rights, health, safety, labor, discrimination and environmental laws, rules, regulations, codes and ordinances; (e) in connection with this Agreement and the transactions provided for herein, including transfer and other taxes, and expenses pertaining to the performance by Seller of its obligations hereunder, provided that Seller shall pay any sales taxes due to the State of Louisiana upon the sale of the Assets to Buyer; (f) to any shareholder of Seller; and (g) with respect to any options, warrants, agreements or convertible or other rights to acquire any securities of or interests in the Seller.

Assumption of Certain Obligations. At the Closing, and subject to the limitation set forth at Section 1.3(y) below, Buyer shall not, by will assume and will be liable for Seller's obligations to render performance under the execution, delivery IFE Contracts and performance the License and Distribution Agreements insofar as the same have been disclosed to the Buyer prior to the date of this Agreement, assume, . Buyer will not assume and will not be bound by or otherwise be responsible liable for any other obligations of Seller; provided, however, that Buyer, in its sole discretion and without otherwise incurring any liability or obligation for other obligations of Seller not assumed by it, may perform on behalf of Seller certain of Seller's obligations not otherwise assumed hereunder and, in any such event shall be entitled to reduce the Purchase Price (as defined in Section 2.1(a) below) by an amount equal to the cost to Buyer to perform such obligation. Such reduction of the Purchase Price shall be accomplished by Buyer making a claim against Seller and Seller either satisfying such claim in cash or, to the extent there are any revenue payments available to be set-off against, by Buyer setting-off the amount of any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whatsoever whether arising out such claim against any other sums due to Seller in respect of occurrences prior to, at or after the date hereof, with reference to the Assets except those obligations assumed by Buyer under those certain licensesrevenue sharing arrangements in this Agreement. Without limiting the foregoinggenerality of the immediately preceding sentence, it is understood that Buyer does not assumeSeller will retain and be solely responsible for (v) any claims, undertake causes of action or accept pending or threatened litigation or proceedings (including without limitation any obligationsenvironmental or tort liabilities) relating to or arising out of any acts, dutiesfacts, responsibilities circumstances, events or liabilities of Seller that now exist conditions occurring or may arise in the future with respect to matters occurring on or existing prior to the Closing Date (aas defined in Section 8.1), regardless of when such claims or causes of action are asserted or such litigation or proceedings are commenced, (w) to any contract liabilities, the existence or amount of which does not relate expressly to the Masters; (b) to any employee constitute a breach of a representation, warranty or former employee covenant of Seller contained in this Agreement or any document executed and delivered by Seller to Buyer pursuant to this Agreement, (x) any liability, costs or claims of any nature by or in respect of any of the employees, officers, agents or contractors of Seller whether or not engaged in the IFE Business, none of which are assumed by Buyer hereunder, (y) any claims, causes of action or any pending or threatened litigation or proceedings and any liability thereby arising in respect of Mr. Sneaky, other than any liability assumed by Buyer to support those IFE customers, if any, utilizing such employeegame until the expiration of the current IFE Contract with respect thereto provided that the Seller shall not be under any such liability in respect of Mr. Sneaky where such liability arises as a result of the Buyer's beneficiariesmisuse of the rights licensed to it in connection with Mr. Sneaky (that is, heirs any use of Mr. Sneaky software files other than for the limited purpose described in Section 1.1(c) above), and (z) any obligation or assignsliability, claims or causes of action arising out of such employee's or former employee's employment by Seller, or out of the transactions contemplated by this Agreement; (c) with respect to (i) any income, profits, property, excise or similar taxes (it being understood that Seller shall pay and be responsible for any and all taxes related to the operations of the Business through the Closing), or (ii) any claims for any personal injuries, property damage or consequential damage relating to products sold or manufactured by Seller on or prior to the Closing; (d) under any statutes, rule, regulation, code or ordinance, including, but not limited to, civil rights, health, safety, labor, discrimination and environmental laws, rules, regulations, codes and ordinances; (e) in connection with this Agreement and the transactions provided for herein, including transfer and other taxes, and expenses pertaining to the performance by Seller of its obligations hereunder, provided that Seller shall pay any sales taxes due to the State of Louisiana upon the sale of the Assets to Buyer; (f) to any shareholder of Seller; and (g) with respect to any options, warrants, agreements or convertible or other rights to acquire any securities of or interests in the Seller's contracts with Air France/Rockwell and British Airways.

Assumption of Certain Obligations. At the Closing, the Buyer shall not, by the execution, delivery and performance of this Agreement, assume, and agree to pay, perform, fulfill and discharge, the following liabilities and obligations of the Seller relating to the Division (collectively, the "Assumed Obligations"): (a) those obligations of the Seller which accrue after the Closing and which relate to events which transpire subsequent to the Closing under (i) Software Licenses and Personal Property Leases and (ii) the Other Contracts; (b) current liabilities of the Division at Closing, to include accounts payable, accrued expenses, and deferred revenue of the Division (collectively, the "Current Liabilities"); and (c) all liability of the Seller for accrued bonus, vacation, commissions and sick pay and severance relating to the Retained Employees but only to the extent set forth on Schedule 2 hereto. Anything in this Agreement to the contrary notwithstanding, the Buyer shall not assume, and shall not be bound by or otherwise be responsible for deemed to have assumed, any liability or obligation of the Seller of any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whatsoever whether arising out of occurrences prior to, at or after the date hereof, with reference to the Assets except those obligations assumed by Buyer under those certain licensesother than as specifically set forth in this Section 2. Without limiting the foregoing, it is understood specifically agreed that the Buyer does shall have no liability for (a) payroll, payroll Taxes and other withholding obligations through the Closing Date, or (b) any Taxes relating to the Seller, the Division or the Acquired Assets which accrue (whether or not assume, undertake or accept any obligations, duties, responsibilities or liabilities of Seller that now exist or may arise in the future with respect to matters occurring on or due) prior to the Closing (a) to any contract which does not relate expressly to the Masters; (b) to any employee or former employee of Seller or any liability for the unpaid Taxes of such employee's beneficiariesany person under Reg. ss.1.502-6 (or any similar provision of state, heirs local or assignsforeign law), arising out of such employee's as transferee or former employee's employment successor, by Sellercontract, or out of the transactions contemplated by this Agreement; (c) with respect to (i) any income, profits, property, excise or similar taxes (it being understood that Seller shall pay and be responsible for any and all taxes related to the operations of the Business through the Closing), or (ii) any claims for any personal injuries, property damage or consequential damage relating to products sold or manufactured by Seller on or prior to the Closing; (d) under any statutes, rule, regulation, code or ordinance, including, but not limited to, civil rights, health, safety, labor, discrimination and environmental laws, rules, regulations, codes and ordinances; (e) in connection with this Agreement and the transactions provided for herein, including transfer and other taxes, and expenses pertaining to the performance by Seller of its obligations hereunder, provided that Seller shall pay any sales taxes due to the State of Louisiana upon the sale of the Assets to Buyer; (f) to any shareholder of Seller; and (g) with respect to any options, warrants, agreements or convertible or other rights to acquire any securities of or interests in the Sellerotherwise.

Assumption of Certain Obligations. At the Closing, and subject to the limitation set forth at Section 1.3(z) below, Buyer shall not, by will assume and will be liable for Seller's obligations to render performance under the execution, delivery IFE Contracts and performance the License and Distribution Agreements insofar as the same have been disclosed to the Buyer prior to the date of this Agreement, assume, . Buyer will not assume and will not be bound by or otherwise be responsible liable for any other obligations of Seller; provided, however, that Buyer, in its sole discretion and without otherwise incurring any liability or obligation for other obligations of Seller not assumed by it, may perform on behalf of Seller certain of Seller's obligations not otherwise assumed hereunder and, in any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whatsoever whether arising out of occurrences prior to, at or after such event shall be entitled to reduce the date hereof, with reference Purchase Price (as defined in Section 2.1(a) below) by an amount equal to the Assets except those obligations assumed cost to Buyer to perform such obligation. Such reduction of the Purchase Price shall be accomplished by Buyer under those certain licensesmaking a claim against and reducing the Post Closing Escrow Deposit for as long as the Post Closing Escrow Deposit remains deposited with the Escrow Agent (and is not exhausted). Without limiting the foregoinggenerality of the immediately preceding sentence, it is understood that Buyer does not assumeSeller will retain and be solely responsible for (w) any claims, undertake causes of action or accept pending or threatened litigation or proceedings (including without limitation any obligationsenvironmental or tort liabilities) relating to or arising out of any acts, dutiesfacts, responsibilities circumstances, events or liabilities of Seller that now exist conditions occurring or may arise in the future with respect to matters occurring on or existing prior to the Closing Date (aas defined in Section 8.1), regardless of when such claims or causes of action are asserted or such litigation or proceedings are commenced, (x) to any contract liabilities, the existence or amount of which does not relate expressly to the Masters; (b) to any employee constitute a breach of a representation, warranty or former employee covenant of Seller contained in this Agreement or any document executed and delivered by Seller to Buyer pursuant to this Agreement, (y) any liability, costs or claims of such employee's beneficiaries, heirs any nature by or assigns, arising out in respect of such employee's or former employee's employment by Seller, or out any of the transactions contemplated employees, officers, agents or contractors of Seller whether or not engaged in the IFE Business, none of which are assumed by this Agreement; Buyer hereunder, and (cz) any claims, causes of action or any pending or threatened litigation or proceedings and any liability thereby arising in respect of Mr. Sneaky, other than any liability assumed by Buyer to support those IFE customers, if any, utilizing such game until the expiration of the current IFE Contract with respect to (i) any income, profits, property, excise or similar taxes (it being understood thereto provided that the Seller shall pay and not be responsible for under any and all taxes related to the operations such liability in respect of Mr. Sneaky where such liability arises as a result of the Business through Buyer's misuse of the Closing), or (ii) any claims for any personal injuries, property damage or consequential damage relating rights licensed to products sold or manufactured by Seller on or prior to the Closing; (d) under any statutes, rule, regulation, code or ordinance, including, but not limited to, civil rights, health, safety, labor, discrimination and environmental laws, rules, regulations, codes and ordinances; (e) it in connection with this Agreement and Mr. Sneaky (that is, any use of Mr. Sneaky software files other than for the transactions provided for herein, including transfer and other taxes, and expenses pertaining to the performance by Seller of its obligations hereunder, provided that Seller shall pay any sales taxes due to the State of Louisiana upon the sale of the Assets to Buyer; (flimited purpose described in Section 1.1(c) to any shareholder of Seller; and (g) with respect to any options, warrants, agreements or convertible or other rights to acquire any securities of or interests in the Sellerabove).

Assumption of Certain Obligations. Effective at the Closing and --------------------------------- subject to the terms set forth herein, at the Closing Buyer shall notassume and be liable for (a) all liabilities of Seller that are disclosed on Seller's September 20, by 1997 balance sheet and all trade accounts payable, accrued expenses and other liabilities that arise from such date through the execution, delivery Closing Date (as defined below) to the extent they were or are incurred in the ordinary course of business and performance in compliance with the terms of this Agreement, assume, be bound by or otherwise be responsible for any liability or obligation of Seller of any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whatsoever whether arising out of occurrences prior to, at or after the date hereof, with reference to the Assets except those obligations assumed by Buyer under those certain licenses. Without limiting the foregoing, it is understood that Buyer does not assume, undertake or accept any obligations, duties, responsibilities or liabilities of Seller that now exist or may arise in the future but with respect to matters occurring Seller's indebtedness to Firstar Bank, only to the extent of $10,000,000 in the aggregate (including principal and accrued interest) and specifically excluding (i) all expenses incurred in connection with the transactions contemplated hereby, (ii) all liabilities and obligations relating to the AmJet Services Division of Seller, (iii) all liabilities and obligations relating to the operation of AmJet Aircraft Corporation, a Minnesota corporation, (iv) all liabilities and obligations relating to the Excluded Assets, and (v) all liabilities and obligations under the "Grid Note" described in the 60-Ton Portal Crane Agreement, as defined below; and (b) Seller's obligations to render performance arising after the Closing Date under, or otherwise accruing after the Closing Date under, the contracts, leases, arrangements and commitments listed on Schedule 1.1A (but not any obligation for ------------- performance or obligation or liability of Seller for default or nonperformance under said contracts, leases, arrangements and commitments arising prior to the Closing (a) to Closing)(collectively, the "Assumed Liabilities"). Buyer will not assume and will not be liable for any contract which does not relate expressly to the Masters; (b) to any employee debts, contracts, leases, liabilities, arrangements, commitments, obligations, restrictions or former employee duties of Seller or any of such employee's beneficiaries, heirs or assigns, arising out of such employee's or former employee's employment by Seller, or out of the transactions contemplated by this Agreement; (c) with respect to (i) any income, profits, property, excise or similar taxes (it being understood that Seller shall pay and be responsible for any and all taxes related to the operations of the Business through the Closing), or (ii) any claims for any personal injuries, property damage or consequential damage relating to products sold or manufactured by Seller on or prior to the Closing; (d) under any statutes, rule, regulation, code or ordinance, including, but not limited to, civil rights, health, safety, labor, discrimination and environmental laws, rules, regulations, codes and ordinances; (e) in connection with this Agreement and the transactions provided for herein, including transfer and other taxes, and expenses pertaining to the performance by Seller of its obligations hereunder, provided that Seller shall pay any sales taxes due to the State of Louisiana upon the sale of the Assets to Buyer; (f) to any shareholder of Seller; and (g) with respect to any options, warrants, agreements or convertible or other rights to acquire any securities of or interests than as specified in the Seller.preceding sentence. Buyer shall execute and deliver to Seller at the Closing an Assumption Agreement in substantially the form attached hereto as Exhibit B. ---------

Assumption of Certain Obligations. Except as hereinbelow provided, at the Closing, the Buyer shall notassume, and agree to pay, perform, fulfill and discharge, (i) those obligations of the Seller which accrue after the Closing Date and which relate to events which transpire subsequent to the Closing Date, under the Real Estate Leases, Personal Property Leases and Other Contracts together with any and all other obligations connected to, arising from or relating to the operation of the Buyer's business after the Closing Date, (ii) the debt obligations set forth on SCHEDULE 3 hereto, (iii) the trade accounts payable as set forth on SCHEDULE 3 as offset (in accordance with Seller's GAAP (as defined in Section 5.2(a)) by co-op advertising amounts due from vendors, and (iv) the executionaccrued, delivery and performance ordinary-course liabilities of the Seller as set forth on SCHEDULE 3 hereto (collectively, the "ASSUMED OBLIGATIONS"). Except as expressly set forth in this Agreement, the Buyer shall NOT assume, and shall NOT be bound by or otherwise be responsible for deemed to have assumed, any liability or obligation of the Seller of whatsoever including, without limitation: (i) any kind liability or nature, known, unknown, accrued, absolute, contingent obligation relating to or otherwise, whatsoever whether arising out of occurrences prior to, at or after the date hereof, with reference to ownership of the Acquired Assets except those obligations assumed by Buyer under those certain licenses. Without limiting the foregoing, it is understood that Buyer does not assume, undertake or accept any obligations, duties, responsibilities or liabilities of Seller that now exist or may arise in the future with respect to matters occurring on or prior to the Closing (a) to any contract which does not relate expressly to the Masters; (b) to any employee or former employee of Seller or any of such employee's beneficiariesDate, heirs or assigns, arising out of such employee's or former employee's employment by Seller, or out of the transactions contemplated by this Agreement; (c) with respect to (i) any income, profits, property, excise or similar taxes (it being understood that Seller shall pay and be responsible for any and all taxes related to the operations of the Business through the Closing), or (ii) any claims for any personal injuriesobligations not expressly assumed pursuant to this Section 3, property damage or consequential damage relating to products sold or manufactured by Seller on or including non-assumed Seller's obligations arising prior to the Closing; Closing Date, such as Taxes (das defined in Section 6.13), violations of law, employee liabilities, product liability claims, customer claims for rebates, refunds or allowances, environmental liabilities, or intellectual property infringement claims, or amounts owed to vendors who have, as of the Closing Date, prepaid booth registration fees to Seller for Seller's October 2002 "Conversion Expo" and subsequent to the Closing Date such vendor cancels its registration and seeks a refund of such fees, (iii) under any statutes, rule, regulation, code or ordinance, including, but not limited to, civil rights, health, safety, labor, discrimination and environmental laws, rules, regulations, codes and ordinances; (e) in connection with this Agreement and bank debt of the transactions provided for herein, including transfer and other taxesSeller, and expenses pertaining to the performance by Seller of its (iv any obligations hereunder, provided that Seller shall pay any sales taxes due to the State of Louisiana upon the sale of the Assets to Buyer; (f) relating to any shareholder of Seller; and (g) with respect to any options, warrants, agreements or convertible or other rights to acquire any securities of or interests in the SellerExcluded Assets.

Assumption of Certain Obligations. Buyer shall not, by the execution, delivery and performance of Pursuant to this Agreement, assumeand as part of the consideration paid by Buyer hereunder, Buyer assumes and undertakes to discharge and perform Sellers' obligations (a) shown as liabilities of Sellers on the Closing Date Balance Sheets (provided, that all such assumed obligations are of the type and category set forth on Schedule 3.2(a); and provided further, that Buyer shall have no liability in connection with any such obligation in any amount in excess of the amount of such obligation shown on the Closing Date Balance Sheet and taken into account in determining Net Assets (except that Buyer assumes the obligations for all unpaid non-reimbursed cost or expenses of or related to the Conference in the amount set forth on the Closing Date Balance Sheet plus an additional amount equal to one-eleventh (1/11th) of the amount accrued); (b) pursuant to the express terms of those written Contracts set forth on Schedule 3.2(b); (c) the written summaries of oral Customer Contracts provided by Sellers to Buyer and listed on Schedule 3.2(c); provided, that in each case under the foregoing Sections 3.2(b) and (c), (i) Buyer shall assume only such written Contracts and obligations pursuant to Customer Contracts so summarized in writing by Sellers, and only to the extent such obligations are first required to be bound by performed subsequent to the close of business on the Closing Date and (ii) in no event shall Buyer assume any obligation (A) in connection with any claims that arise in connection with any Seller's pre-Closing performance or otherwise be responsible for any liability or obligation of Seller non-performance of any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whatsoever whether arising out of occurrences prior to, at or after the date hereof, with reference to the Assets except those obligations assumed by Buyer under those certain licenses. Without limiting the foregoing, it is understood that Buyer does not assume, undertake or accept any obligations, duties, responsibilities or liabilities of Seller that now exist or may arise in the future with respect to matters occurring Contract (where deliverables are delivered on or prior to the Closing Date) or (aB) to perform services for, or assume any other liability to, any party to a contract which does not relate expressly to the Mastersextent such party has paid Sellers in advance for such performance and Sellers have not remitted such payment to Buyer pursuant to Section 1.1(c); (b) to any employee or former employee of Seller or any of such employee's beneficiaries, heirs or assigns, arising out of such employee's or former employee's employment by Seller, or out of the transactions contemplated by this Agreement; (c) with respect to (i) any income, profits, property, excise or similar taxes (it being understood that Seller shall pay and be responsible for any and all taxes related to the operations of the Business through the Closing), or (ii) any claims for any personal injuries, property damage or consequential damage relating to products sold or manufactured by Seller on or prior to the Closing; (d) post-closing obligations under any statutes, rule, regulation, code Benefit Plans sponsored or ordinance, including, but not limited to, civil rights, health, safety, labor, discrimination and environmental laws, rules, regulations, codes and ordinances; maintained by the Sellers as listed in Schedule 5.1(h) (e) in connection with this Agreement and the transactions provided for herein, including transfer and other taxes, and expenses pertaining foregoing referred to as the performance by Seller of its obligations hereunder, provided that Seller shall pay any sales taxes due to the State of Louisiana upon the sale of the Assets to Buyer; (f) to any shareholder of Seller; and (g) with respect to any options, warrants, agreements or convertible or other rights to acquire any securities of or interests in the Seller"Assumed Liabilities").