ASSUMED LIABILITIES
AS DEFINED IN SECTION 2.2(A) BELOW.
2.2
ASSUMED AND RETAINED LIABILITIES.
(A)
ASSUMED LIABILITIES.
THE FOLLOWING SHALL
CONSTITUTE, AND ARE HEREIN TOGETHER REFERRED TO AS, THE "ASSUMED LIABILITIES":
(1)
THOSE LIABILITIES WHICH (A) ARE IDENTIFIED
ON SCHEDULE 2.2(A)(1) ATTACHED HERETO (INCLUDING OUTSTANDING PURCHASE ORDERS,
TRADE ACCOUNTS PAYABLE AND ACCRUED LIABILITIES AND EXPENSES REFLECTED ON SAID
SCHEDULE) AND (B) CONSIST OF ANY TRADE PAYABLES NOT SO LISTED IF (I) NEITHER
SELLER NOR PARENT HAVE "KNOWLEDGE" (WHICH TERM, WHEN USED IN REFERENCE TO ANY
PERSON, MEANS MATTERS WHICH ARE KNOWN TO SUCH PERSONS AND MATTERS WHICH MIGHT
REASONABLY BE DISCOVERED BY THEM IN THE EXERCISE OF DUE INQUIRY, EXCLUDING
INQUIRY OF ANY ADVERSE PARTY TO THIS AGREEMENT) THEREOF, (II) INVOICES ARE
DELIVERED TO BUYER PROMPTLY FOLLOWING THEIR RECEIPT OR DISCOVERY, (III)
[***************************************************************], AND (IV) SUCH
LIABILITIES ARE LISTED IN THE SUPPLEMENTAL SCHEDULE PROVIDED FOR IN SECTION
3.2(G)(2) (THE "ASSUMED BALANCE SHEET LIABILITIES");
(2)
SUBJECT TO THE PROVISIONS SET FORTH IN
SECTION 3.3(D) AND THE EXCLUSION PROVIDED FOR IN SECTION 2.2(B)(4)(E), THE
SELLER'S OBLIGATIONS TO ALL INDIVIDUAL AND CORPORATE CUSTOMERS TO PROVIDE
TRAINING WHICH HAS BEEN PURCHASED BY SUCH CUSTOMERS PRIOR TO THE EFFECTIVE DATE
BUT NOT YET DELIVERED AS OF THE EFFECTIVE DATE (THE "TRAINING OBLIGATIONS");
(3)
ANY OBLIGATION FOR CASH REFUNDS TO
CUSTOMERS IN RESPECT TO ANY PREPAID TRAINING, EXCEPT TO THE EXTENT SUCH
CONSTITUTES A RETAINED LIABILITY UNDER SECTION 2.2(B)(4)(E);
(4)
ANY OBLIGATION TO PAY FOR TRAINING PROVIDED
BY ANY OTHER FRANCHISEE OR AFFILIATE OF THE FRANCHISOR IN RESPECT TO NATIONAL
TRAINING COUPONS SOLD BY SELLER, EXCEPT TO THE EXTENT SUCH CONSTITUTES A
RETAINED LIABILITY UNDER SECTION 2.2(B)(4)(F);
4
(5)
ANY DEBT, LIABILITY OR OBLIGATION ACCRUING
FROM AND AFTER THE EFFECTIVE DATE UNDER OR PURSUANT TO ANY OF THE ASSIGNED
CONTRACTS;
(6)
ANY DEBTS, LIABILITIES OR OBLIGATIONS
INCURRED BY BUYER, OR ACTIONS, CLAIMS OR LAWSUITS ASSERTED AGAINST EITHER BUYER
OR SELLER, WHICH RELATE TO THE OPERATION OF THE BUSINESS ON OR AFTER THE
EFFECTIVE DATE; AND
(7)
ANY CLAIM (AND ANY LIABILITY RESULTING
THEREFROM) AGAINST SELLER WHICH IS MADE BY A PERSON EMPLOYED BY SELLER
IMMEDIATELY PRIOR TO THE EFFECTIVE DATE WHICH IS BASED SOLELY UPON BUYER'S
FAILURE OR REFUSAL TO MAKE AN OFFER OF EMPLOYMENT TO SUCH PERSON AS OF THE
EFFECTIVE DATE (BUT EXCLUDING CLAIMS ARISING FROM ANY OTHER CIRCUMSTANCES,
INCLUDING BUT NOT LIMITED TO, ANY AGREEMENTS EXISTING OR ALLEGED TO EXIST
BETWEEN SELLER AND ANY SUCH PERSON, OR ANY CLAIMS UNDER THE WORKER ADJUSTMENT
AND RETRAINING NOTIFICATION ACT, 29 U.S.C. §§2101-2109, AS AMENDED, OR ANY
CLAIMS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED).
(B)
RETAINED LIABILITIES.
BUYER SHALL NOT BE
OBLIGATED TO PAY, PERFORM OR ABIDE BY, AND SELLER SHALL RETAIN EXCLUSIVE
RESPONSIBILITY FOR, ANY LIABILITIES, DEBTS, OBLIGATIONS, UNDERTAKINGS OR
COMMITMENTS OF THE SELLER (THE "RETAINED LIABILITIES"), OTHER THAN THE ASSUMED
LIABILITIES.
EXCEPT FOR ASSUMED BALANCE SHEET LIABILITIES IDENTIFIED AND SET
FORTH ON SCHEDULE 2.2(A)(1) (AS AMENDED BY THE SUPPLEMENTAL SCHEDULE), THE
RETAINED LIABILITIES SHALL INCLUDE, BUT NOT BE LIMITED