ENTERED INTO (A) PRIOR TO THE DATE OF THIS AGREEMENT, AND ASSIGNED PURSUANT TO
SECTION 2.1(E), OR (B) AFTER THE DATE HEREOF IN ACCORDANCE WITH SECTION 6.2; AND
(V)
ANY LIABILITY OF ANY SELLER EXPRESSLY
DESCRIBED IN SECTION 2.4(A)(V) OF THE SELLER DISCLOSURE LETTER.
(B)
RETAINED LIABILITIES. THE RETAINED LIABILITIES SHALL REMAIN THE
SOLE RESPONSIBILITY OF AND SHALL BE RETAINED, PAID, PERFORMED AND DISCHARGED
SOLELY BY SELLERS. "RETAINED LIABILITIES" SHALL MEAN EVERY LIABILITY OF SELLERS,
DISCLOSED OR UNDISCLOSED, OTHER THAN THE ASSUMED LIABILITIES, INCLUDING:
(I)
ANY LIABILITY FOR TAXES ARISING AS
A RESULT OF ANY SELLER'S (A) OPERATION OF THE BUSINESS, (B) OWNERSHIP OF THE
ASSETS OR (C) INCLUSION IN A CONSOLIDATED, AFFILIATED, COMBINED OR UNITARY GROUP
(EXCEPT AS PROVIDED IN SECTION 2.5) PRIOR TO THE EFFECTIVE TIME;
(II)
ANY LIABILITY UNDER ANY CONTRACT OR
BID NOT ASSUMED BY BUYER UNDER SECTION 2.4(A);
(III)
ANY LIABILITY ARISING OUT OF OR
RELATING TO ANY CIRCUMSTANCE, CONDITION, OCCURRENCE OR EVENT FIRST HAPPENING OR
MANIFESTED PRIOR TO THE EFFECTIVE TIME AND ARISING OUT OF OR RELATING TO THE
PRODUCTS OF THE BUSINESS DESIGNED, MANUFACTURED,
16
DISTRIBUTED OR SOLD OR SERVICES RENDERED PRIOR TO THE EFFECTIVE TIME, INCLUDING
ANY LIABILITY ARISING OUT OF ANY PROCEEDING (INCLUDING THE OBLIGATION TO HANDLE
SUCH PROCEEDING) RELATING THERETO, BUT EXCLUDING ANY PROCEEDING DESCRIBED IN
SECTION 2.4(A)(V) OF THE SELLER DISCLOSURE LETTER;
(IV)
ANY LIABILITY OF ANY SELLER UNDER THE
SELLER BENEFIT PLANS OR RELATING TO PAYROLL, SICK LEAVE, WORKERS' COMPENSATION
OR UNEMPLOYMENT BENEFITS FOR ANY OF SELLER'S EMPLOYEES;
(V)
ANY ENVIRONMENTAL LIABILITIES OF THE
BUSINESS ARISING OUT OF OR RELATING TO ANY CIRCUMSTANCE, CONDITION, OCCURRENCE
OR EVENT HAPPENING OR MANIFESTED PRIOR TO THE EFFECTIVE TIME;
(VI)
ANY LIABILITY UNDER ANY TRANSACTION
BONUSES OR ANY EMPLOYMENT, SEVERANCE, RETENTION OR TERMINATION AGREEMENT WITH
ANY EMPLOYEE OF ANY SELLER OR ANY OF ITS RELATED PERSONS, INCLUDING, BUT NOT
LIMITED TO, SPONSORSHIP OF ANY SELLER BENEFIT PLAN;
(VII)
ANY LIABILITY OF ANY SELLER TO ANY RELATED
PERSON OF SUCH SELLER;
(VIII)
ANY LIABILITY TO INDEMNIFY, REIMBURSE OR
ADVANCE AMOUNTS TO ANY OFFICER, DIRECTOR OR EMPLOYEE OF ANY SELLER TO THE EXTENT
NOT REFLECTED AS A LIABILITY ON THE CLOSING BALANCE SHEET;
(IX)
ANY LIABILITY OF ANY SELLER UNDER THIS
AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION WITH THE CONTEMPLATED
TRANSACTIONS; AND
(X)
ANY LIABILITY OF ANY SELLER CAUSED
BY SUCH SELLER'S OWNERSHIP OF THE ASSETS OR OPERATION OF BUSINESS, OR SUCH
SELLER'S ACTS OR OMISSIONS OCCURRING PRIOR TO OR AFTER THE EFFECTIVE TIME,
INCLUDING WITHOUT LIMITATION ANY LIABILITY RELATED TO OR ARISING OUT OF THE
MATTERS DESCRIBED IN ITEM 2 ON SECTION 3.14(A) OF THE SELLER DISCLOSURE LETTER.
2.5
PRORATIONS OF CERTAIN PROPERTY TAXES
Any general real or personal property Tax assessed against or pertaining to the
Assets for the Tax period that includes the Closing Date shall be prorated
between Buyer and Sellers as of the Closing Date in accordance with this Section
2.5.
To determine Sellers' liability for any real and personal property Taxes
for the period ending