(vii) all of
UES's Tax credits and claims for Tax refunds; (viii) all of UES's notes
receivable, accounts receivable and other rights to payment from any Related
Party; (ix) all partnership interests in UES's treasury; (x) all of UES's
Contracts and specific assets identified on Schedule 1.2(b); (xi) all personnel
records that UES is required by law to retain in its possession; and (xii) all
of UES's rights to insurance proceeds in respect of Retained Liabilities.
Notwithstanding anything to the contrary in this Agreement, none of the UES
Retained Assets shall be included in the UES Assets.
(c)
Assumption of Liabilities.
Subject to the
conditions described in Article II, at Closing, Buyer shall, pursuant to an
Assumption Agreement substantially in the form of Exhibit B (the "UES Assumption
Agreement"), assume and agree to pay, perform, satisfy and discharge when due,
to the extent not theretofore paid, performed, satisfied and discharged, the
following known and identifiable liabilities of UES existing on the Closing
Date, except the UES Retained Liabilities (collectively, the "UES Assumed
Liabilities"):
(I)
ALL OF UES'S SHORT-TERM LIABILITIES
REFLECTED IN THE INTERIM BALANCE SHEET IN THE AMOUNTS SHOWN THEREON;
(II)
ALL OF UES' SHORT-TERM LIABILITIES INCURRED
AFTER THE INTERIM BALANCE SHEET DATE IN THE ORDINARY COURSE OF BUSINESS IN
ACCORDANCE WITH PAST PRACTICE THAT ARE REQUIRED TO BE REFLECTED IN THE CLOSING
BALANCE SHEET IN ACCORDANCE WITH GAAP, IN THE AMOUNTS SHOWN THEREON, INCLUDING
ALL SHORT-TERM LIABILITIES INCLUDED IN NET ASSET VALUE AND ALL ORDERS FROM UES'S
CUSTOMERS (OTHER THAN ANY LIABILITY IN RESPECT OF ANY SUCH ORDER ARISING FROM
ANY BREACH OR NONPERFORMANCE THEREOF PRIOR TO THE CLOSING DATE;
(III)
ALL OF UES'S LIABILITIES SET FORTH IN THE TERMS
OF THE CONTRACTS, OFFERS AND SOLICITATIONS THAT ARE IDENTIFIED IN
SECTION 1.2(A)(VIII) (OTHER THAN ANY LIABILITY UNDER ANY SUCH CONTRACT, OFFER OR
SOLICITATION ARISING FROM ANY BREACH OR NONPERFORMANCE THEREOF PRIOR TO THE
CLOSING DATE);
(IV)
ALL OF UES'S LIABILITIES UNDER GOVERNMENTAL
AUTHORIZATIONS AND ALL PENDING APPLICATIONS FOR ISSUANCE OR RENEWAL THEREOF THAT
(A) ARE TRANSFERABLE TO BUYER HEREUNDER AND (B) ARE EITHER (1) LISTED ON
SCHEDULE 4.14 OR 4.22 OR (2) ARE OBTAINED OR SUBMITTED BY UES AFTER THE DATE
HEREOF AND PRIOR TO THE CLOSING DATE (OTHER THAN ANY LIABILITY UNDER ANY SUCH
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GOVERNMENTAL AUTHORIZATION OR APPLICATION ARISING FROM ANY BREACH OR
NONPERFORMANCE THEREOF PRIOR TO THE CLOSING DATE);
(V)
ALL LIABILITIES OF UES AND ITS AFFILIATES
FOR ALL TRANSFER, DOCUMENTARY, SALES, USE AND MOTOR VEHICLE TAXES THAT RESULT
FROM THE SALE OF THE UES ASSETS PURSUANT TO THIS AGREEMENT; AND
(VI)
LIABILITIES RELATING TO THE HIA CLAIM BUT ONLY
TO THE EXTENT SUCH LIABILITIES ARE LESS THAN OFFSETTING AMOUNTS RECEIVED WITH
RESPECT TO SUCH CLAIM (I.E., ONLY TO THE EXTENT BUYER'S PARTICIPATION IN THE HIA
CLAIM RESULTS IN A NET CASH RECOVERY FOR BUYER).
(d)
UES Retained Liabilities.
Notwithstanding
anything to the contrary in this Agreement, Buyer is not assuming, and shall not
assume or in any way undertake to pay, perform, satisfy or