discharge, any
Liabilities of UES or any Predecessor existing before, on or after the Closing
Date or arising out of any transactions entered into, or any state of facts
existing, before, on or after the Closing Date, and whether or not related to or
arising out of any of the UES Assets, except the UES Assumed Liabilities (the
"UES Retained Liabilities"), and UES agrees to pay, perform, satisfy and
discharge when due all UES Retained Liabilities.
Without limiting the
foregoing, the term "UES Retained Liabilities" shall include any and all:
(I)
LIABILITIES OF UES (A) TO ANY RELATED
PARTY, (B) FOR OR IN CONNECTION WITH ANY DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS,
OR SECURITY RIGHTS WITH RESPECT TO ANY SECURITY OF UES, (C) TO INDEMNIFY UES'S
OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OR (D) ARISING OUT OF ANY TRANSACTION
AFFECTING, OR ANY OBLIGATIONS INCURRED BY, UES OR ITS OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS AFTER CLOSING;
(II)
LIABILITIES IDENTIFIED ELSEWHERE IN THIS
AGREEMENT AS BEING THE RESPONSIBILITY OF UES;
(III)
LIABILITIES OF UES AND ITS AFFILIATES FOR ANY
TAXES, WHETHER OR NOT BY REASON OF, OR IN CONNECTION WITH, THE CONTEMPLATED
TRANSACTIONS (OTHER THAN LIABILITIES FOR TRANSFER, DOCUMENTARY, SALES, USE OR
MOTOR VEHICLE TAXES THAT (A) RESULT FROM THE SALE OF THE UES ASSETS PURSUANT TO
THIS AGREEMENT AND (B) CONSTITUTE UES ASSUMED LIABILITIES), INCLUDING (1) ANY
TAXES ARISING AS A RESULT OF UES'S OPERATION OF ITS BUSINESS OR OWNERSHIP OF THE
UES ASSETS PRIOR TO THE CLOSING DATE, (2) ANY LIABILITY OF UES FOR TAXES OF ANY
PERSON UNDER TREASURY REGULATION SECTION 1.1502-6 (OR ANY SIMILAR PROVISION OF
STATE, LOCAL OR FOREIGN LAW), AS A TRANSFEREE OR SUCCESSOR, BY CONTRACT, OR
OTHERWISE, (3) ANY TAXES THAT RESULT FROM THE SALE OF THE UES ASSETS PURSUANT TO
THIS AGREEMENT (OTHER THAN LIABILITIES FOR TRANSFER, DOCUMENTARY, SALES, USE AND
MOTOR VEHICLE TAXES THAT (Y) RESULT FROM THE SALE OF THE UES ASSETS PURSUANT TO
THIS AGREEMENT AND (Z) CONSTITUTE UES ASSUMED LIABILITIES), AND (4) ANY DEFERRED
TAXES OF UES OF ANY KIND;
(IV)
LIABILITIES UNDER OR ARISING OUT OF OR
RELATING TO ANY DISCONTINUED OPERATIONS OF UES, INCLUDING ANY REMAINING
LIABILITIES OF UES OR ANY PREDECESSOR UNDER ANY PURCHASE AND SALE AGREEMENTS
EFFECTING SUCH DISPOSITIONS OR AGREEMENTS ANCILLARY OR RELATED THERETO;
11
(V)
LIABILITIES ATTRIBUTABLE TO UES RETAINED
ASSETS, INCLUDING LIABILITIES (A) FOR UES'S CHECKS THAT ARE OUTSTANDING ON THE
CLOSING DATE AND (B) THAT (1) ARE INCURRED AFTER THE INTERIM BALANCE SHEET DATE
AND (2) ARE OUTSIDE THE ORDINARY COURSE OF BUSINESS OR NOT IN ACCORDANCE WITH
PAST PRACTICE;
(VI)
LIABILITIES TO, UNDER OR WITH RESPECT TO ANY
UES PLAN OR ANY COMFORT SYSTEMS PLAN AND THE ADMINISTRATION OF ANY UES PLAN OR
COMFORT SYSTEMS PLAN, INCLUDING ALL LIABILITIES OF UES TO PAY A HEALTH AND LIFE
INSURANCE CONTINUANCE ALLOWANCE FOLLOWING THE RETIREMENT OF EMPLOYEES, OR TO
PROVIDE ANY OTHER CONTINUATION OF GROUP BENEFITS FOLLOWING THE RETIREMENT OF
EMPLOYEES, AS DESCRIBED IN SCHEDULE 4.21;
(VII)
LIABILITIES OF UES (A) RELATING TO PAYROLL (TO
THE