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(E)(2) (THE "ASSUMED BALANCE SHEET LIABILITIES");
(2)
SUBJECT TO 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);
(5)
ANY DEBT, LIABILITY OR OBLIGATION ACCRUING FROM AND AFTER THE
EFFECTIVE DATE UNDER OR PURSUANT TO ANY OF THE ASSIGNED CONTRACTS;
4
(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 TO, THE FOLLOWING:
(1)
ANY SALES, USE, INCOME, GROSS RECEIPTS, EXCISE, FRANCHISE,
EMPLOYMENT, WITHHOLDING OR OTHER IMPOSITION, DUTY OR TAX (EACH, A "TAX") IMPOSED
BY OR PAYABLE TO ANY GOVERNMENTAL BODY, FEDERAL, STATE OR LOCAL, ON OR WITH
RESPECT TO ANY PERIOD PRIOR TO THE EFFECTIVE DATE OR IN RESPECT TO THE SALE AND
TRANSFER OF THE PURCHASED ASSETS OR THE ASSUMED LIABILITIES;
(2)
ANY LIABILITY OR OBLIGATION ACCRUING PRIOR TO THE EFFECTIVE DATE
IN RESPECT TO (A) ANY EMPLOYEE BENEFIT PLAN OR ANY OTHER EMPLOYEE