DISTRIBUTION LLC, GUARANTOR AND US SELLER.
SECTION 1.4
LIABILITIES.
(A)
ASSUMED LIABILITIES.
SUBJECT TO THE TERMS
AND CONDITIONS SET FORTH IN THIS AGREEMENT AND IN RELIANCE UPON THE
REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS HEREIN CONTAINED, ON THE
CLOSING DATE, ACQUIRER SHALL ASSUME AND AGREE TO PAY, PERFORM OR OTHERWISE
DISCHARGE WHEN DUE, WITHOUT RECOURSE TO THE SELLERS OR THEIR RESPECTIVE
AFFILIATES, THE FOLLOWING LIABILITIES, AND ONLY THE FOLLOWING LIABILITIES, OF
THE SELLERS (COLLECTIVELY THE "ASSUMED LIABILITIES"):
(I)
LIABILITIES RELATING TO THE CONDUCT OF
THE BUSINESS AFTER THE CLOSING DATE UNDER THE CONTRACTS LISTED ON
SECTION 1.4(A)(I) OF THE DISCLOSURE SCHEDULE AND PERMITS (TO THE EXTENT SUCH
PERMIT IS A PURCHASED ASSET);
(II)
ALL CURRENT LIABILITIES INCLUDED IN THE
COMPUTATION OF TANGIBLE NET WORTH, CALCULATED IN ACCORDANCE WITH THE ACCOUNTING
PROCEDURES AND ON A BASIS CONSISTENT WITH SECTION 1.7(A)(I) OF THE DISCLOSURE
SCHEDULE WHICH INCLUDES AN EXAMPLE OF THE CALCULATION OF TANGIBLE NET WORTH AS
OF OCTOBER 31, 2009;
(III)
LIABILITIES TO OR WITH RESPECT TO
TRANSFERRED EMPLOYEES RELATING TO THEIR EMPLOYMENT AFTER THE CLOSING DATE,
INCLUDING, WITHOUT LIMITATION, ANY AMOUNTS DUE OR PAYABLE AFTER THE CLOSING DATE
PURSUANT TO APPLICABLE LAW OR ANY PLAN APPLICABLE TO OR INVOLVING A TRANSFERRED
EMPLOYEE OR ANY SEVERANCE OR TERMINATION PAYMENT ARISING AFTER THE CLOSING DATE
BUT EXCLUDING ANY OBLIGATIONS ARISING DUE TO THE CLOSING OF THE ACQUISITION; AND
(IV)
ALL OTHER LIABILITIES ARISING OUT OF THE
CONDUCT BY ACQUIRER WITH RESPECT TO THE BUSINESS OR THE OWNERSHIP OR OPERATION
BY ACQUIRER OF THE PURCHASED ASSETS, IN EACH CASE, FROM AND AFTER THE CLOSING
DATE.
(B)
EXCLUDED LIABILITIES.
NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR THE ASSUMED LIABILITIES, ACQUIRER
SHALL NOT ASSUME OR OTHERWISE BE LIABLE FOR LIABILITIES OF THE SELLERS OR ANY
OTHER PERSON OF ANY KIND, CHARACTER OR DESCRIPTION, WHETHER
5
ACCRUED, ABSOLUTE, CONTINGENT OR OTHERWISE (THE "EXCLUDED LIABILITIES"),
INCLUDING, BUT NOT LIMITED TO, ANY LIABILITIES ARISING OUT OF OR WITH RESPECT TO
THE EXCLUDED ASSETS, INCLUDING, BUT NOT LIMITED TO, THE LIABILITIES SET FORTH ON
SECTION 1.4(B) OF THE DISCLOSURE SCHEDULE.
SECTION 1.5
UPDATE TO SCHEDULES.
AT LEAST
FIVE (5) BUSINESS DAYS PRIOR TO THE CLOSING, SELLERS SHALL PROVIDE ACQUIRER WITH
UPDATES TO SECTIONS 1.1(A), 1.1(B), AND 1.4(A) OF THE DISCLOSURE SCHEDULE.
SECTION 1.6
PURCHASE PRICE; PAYMENT OF
PURCHASE PRICE.
(A)
TOTAL CONSIDERATION.
SUBJECT TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT, THE AGGREGATE CONSIDERATION FOR THE PURCHASED
ASSETS SHALL BE EQUAL TO THE SUM OF THE CLOSING PAYMENT, THE SUBSEQUENT PAYMENTS
AND THE EARN-OUT PAYMENT (THE "PURCHASE PRICE").
THE PURCHASE PRICE SHALL BE
ALLOCATED AMONG THE US SELLER AND THE CANADIAN SELLER IN ACCORDANCE WITH
SECTION 1.8.
(B)
CLOSING PAYMENT.
AT THE CLOSING, ACQUIRER
SHALL (I) PAY THE SELLERS THIRTY-SIX MILLION FIVE HUNDRED DOLLARS ($36,500,000)
(THE "CLOSING PAYMENT"), SUBJECT TO ADJUSTMENT AS SET FORTH IN
SECTION 1.7(A)(I), BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO
ACCOUNT(S) SPECIFIED BY THE SELLERS AND (II) ASSUME THE ASSUMED LIABILITIES
PURSUANT TO THE ASSIGNMENT AND ASSUMPTION AGREEMENT ATTACHED HERETO AS
EXHIBIT A.