subject to the
conditions set forth herein, at the Closing, Buyer (or a wholly-owned subsidiary
of Buyer as designated by Buyer) shall assume from Sellers, and Sellers shall
irrevocably convey, transfer and assign to Buyer (or a wholly-owned subsidiary
of Buyer as designated by Buyer), all of the Assumed Liabilities (as defined in
Section 2.2(a) hereof).
Buyer shall not assume any liabilities of Sellers
pursuant hereto, other than the Assumed Liabilities.
(A)
DEFINITION OF ASSUMED LIABILITIES.
FOR ALL PURPOSES OF AND UNDER
THIS AGREEMENT, THE TERM "ASSUMED LIABILITIES" SHALL MEAN, REFER TO AND INCLUDE
THE FOLLOWING LIABILITIES OF THE SELLERS (BUT SPECIFICALLY EXCLUDING THE
EXCLUDED LIABILITIES (AS DEFINED IN SECTION 2.2(B) HEREOF)):
(I)
ALL LIABILITIES UNDER THE ASSIGNED CONTRACTS ARISING AFTER THE
CLOSING DATE;
(II)
ALL LIABILITIES UNDER ASSUMED PERMITS ARISING AFTER THE CLOSING
DATE;
(III)
ALL LIABILITIES RELATED TO THE PURCHASED ASSETS OR THE OPERATION
OF THE BUSINESS TO THE EXTENT ARISING FROM OR RELATED TO ANY FACTS OR
CIRCUMSTANCES OCCURRING ON OR AFTER THE CLOSING DATE;
(IV)
EXCEPT AS SET FORTH IN SECTION 5.9, ALL LIABILITIES RELATING TO
EMPLOYEES THAT ARE HIRED BY BUYER FOR ACTIONS THAT OCCUR ON OR AFTER THE DATE OF
HIRE;
(V)
ALL BUYER'S ENVIRONMENTAL LIABILITIES;
16
(VI)
ALL ACCRUED LIABILITIES; AND
(VII)
ALL ASSUMED WARRANTY OBLIGATIONS.
(B)
DEFINITION OF EXCLUDED LIABILITIES.
NOTWITHSTANDING ANYTHING TO
THE CONTRARY SET FORTH IN THIS SECTION 2.2 OR ELSEWHERE IN THIS AGREEMENT, THE
TERM "ASSUMED LIABILITIES" SHALL NOT MEAN, REFER TO OR INCLUDE THE FOLLOWING
(COLLECTIVELY, "EXCLUDED LIABILITIES"):
(I)
ALL LIABILITIES RELATING TO AGREEMENTS NOT ASSUMED BY BUYER (THE
"EXCLUDED AGREEMENTS");
(II)
ANY AND ALL LIABILITIES OR OBLIGATIONS OF SELLERS ARISING FROM
THE BREACH BY A SELLER OF ANY TERM, COVENANT OR PROVISIONS OF ANY OF THE
ASSIGNED CONTRACTS PRIOR TO THE CLOSING;
(III)
SUBJECT TO SECTION 2.7, ALL LIABILITIES FOR TAXES OF SELLERS OR
TAXES ATTRIBUTABLE TO THE OWNERSHIP OR OPERATION OF THE PURCHASED ASSETS FOR ANY
TAXABLE PERIOD (OR PORTION OF ANY PERIOD) ENDING ON OR PRIOR TO THE CLOSING
DATE;
(IV)
ALL LIABILITIES OF SELLERS UNDER THE DEFINITIVE AGREEMENTS OR ANY
OTHER CERTIFICATE, INSTRUMENT OR OTHER AGREEMENT ENTERED INTO BY THE PARTIES IN
CONNECTION WITH THE TRANSACTION;
(V)
EXCEPT AS SET FORTH IN SECTION 2.2(A), ALL EMPLOYMENT LIABILITIES
AND ALL LIABILITIES ARISING UNDER OR WITH RESPECT TO ANY PENSION PLAN;
(VI)
ALL LIABILITIES FOR LEGAL, ACCOUNTING, AUDIT AND INVESTMENT
BANKING FEES, BROKERAGE COMMISSIONS AND ANY OTHER EXPENSES INCURRED BY SELLERS
IN CONNECTION WITH THE TRANSACTION;
(VII)
ALL LIABILITIES FOR OR RELATED TO INDEBTEDNESS OF THE SELLERS, ON
ITS OWN BEHALF OR ON BEHALF OF OTHER PERSONS, TO BANKS, FINANCIAL INSTITUTIONS
OR OTHER PERSONS WITH RESPECT TO BORROWED MONEY, AND INCLUDING ANY ACCRUED
INTEREST PAYABLE IN RESPECT THEREOF;
(VIII)
ALL LIABILITIES OF SELLERS WITH RESPECT TO ACCOUNTS PAYABLE;
(IX)
ALL LIABILITIES THAT ARE ATTRIBUTABLE TO ANY OF THE EXCLUDED
ASSETS;
(X)
SELLERS' RETAINED ENVIRONMENTAL LIABILITIES; AND
(XI)
ALL LIABILITIES OTHER THAN ASSUMED LIABILITIES.
2.3
Closing.
The consummation of the purchase and sale of the
Purchased