BUSINESS FROM, OR BY THE BUSINESS TO, A RELATED PERSON OF ANY SELLER PRIOR TO
THE EFFECTIVE TIME;
(O)
ALL CLAIMS OF ANY SELLER AGAINST THIRD
PARTIES RELATING TO THE BUSINESS OR THE ASSETS, WHETHER CHOATE OR INCHOATE,
KNOWN OR UNKNOWN, CONTINGENT OR NONCONTINGENT, LISTED IN SECTION 2.2(O) OF THE
SELLER DISCLOSURE LETTER, EXCEPT TO THE EXTENT SUCH CLAIMS RELATE TO ASSUMED
LIABILITIES;
(P)
ALL REAL PROPERTY AND INTERESTS IN REAL
PROPERTY OTHER THAN THE BUSINESS PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
REAL PROPERTY AND INTERESTS IN REAL PROPERTY IDENTIFIED
16
ON SECTION 2.2(P) OF THE SELLER DISCLOSURE LETTER AND ALL OTHER TANGIBLE
PERSONAL PROPERTY LOCATED ON SUCH PREMISES; PROVIDED THAT THIS SECTION 2.2(P)
SHALL NOT LIMIT BUYER'S RIGHT TO RECEIVE COPIES OF CERTAIN DATA OR RECORDS
PURSUANT TO SECTION 2.1(G); AND
(Q)
ALL OTHER ASSETS NOT USED IN THE BUSINESS,
INCLUDING, FOR THE AVOIDANCE OF DOUBT, THE TVS BUSINESS AND THE EPD BUSINESS, AS
WELL AS THE DES BUSINESS AND ANY OTHER BUSINESS REPORTED AS DISCONTINUED
OPERATIONS IN THE PARENT'S PUBLICLY DISCLOSED CONSOLIDATED FINANCIAL STATEMENTS
DATED JANUARY 31, 2005 AND ANY OTHER PROPERTY, ASSETS AND RIGHTS DESIGNATED IN
SECTION 2.2(Q) OF THE SELLER DISCLOSURE LETTER.
2.3
CONSIDERATION
The consideration for the Assets (the "Purchase Price") will be (i) the Closing
Payment, (ii) plus or minus the Adjustment Amount, (iii) plus the assumption of
the Assumed Liabilities. In accordance with Section 2.9(b), at the Closing, the
Closing Payment shall be delivered by Buyer to Sellers by wire transfer of
immediately available funds.
The balance of the Purchase Price shall be
satisfied by the execution and delivery of the Bill of Sale, Assignment and
Assumption Agreement, and the Adjustment Amount shall be paid in accordance with
Section 2.10.
2.4
LIABILITIES
(A)
ASSUMED LIABILITIES. ON THE CLOSING DATE,
BUT EFFECTIVE AS OF THE EFFECTIVE TIME, BUYER SHALL ASSUME AND AGREE TO
DISCHARGE THE LIABILITIES REFLECTED ON THE CLOSING BALANCE SHEET THAT ARE UNPAID
AS OF THE EFFECTIVE TIME AND THE FOLLOWING LIABILITIES OF SELLERS (THE "ASSUMED
LIABILITIES"):
(I)
ANY LIABILITY (OTHER THAN A LIABILITY TO
A RELATED PERSON OF ANY SELLER) TO ANY OF SELLERS' CUSTOMERS INCURRED BY SUCH
SELLER IN THE ORDINARY COURSE OF THE BUSINESS FOR BIDS OUTSTANDING AS OF THE
EFFECTIVE TIME;
(II)
ANY LIABILITY TO ANY SELLER'S CUSTOMERS
UNDER WARRANTIES IMPLIED BY LAW AND ANY WARRANTY AGREEMENTS AND INDEMNITIES
GIVEN BY ANY SELLER TO ITS CUSTOMERS PRIOR TO THE EFFECTIVE TIME IN CONNECTION
WITH THE BUSINESS;
(III)
ANY LIABILITY ARISING OUT OF OR RELATING TO
ANY CIRCUMSTANCE, CONDITION, OCCURRENCE OR EVENT FIRST HAPPENING OR MANIFESTED
AT OR AFTER THE EFFECTIVE TIME AND ARISING OUT OF OR RELATING TO (A) PRODUCTS OF
THE BUSINESS DESIGNED, MANUFACTURED, DISTRIBUTED OR SOLD OR SERVICES PROVIDED
PRIOR TO THE EFFECTIVE TIME OR (B) THE BUSINESS OR ANY ACTION OR INACTION
THEREOF OR RELATED THERETO OR TO THE ASSETS AFTER THE CLOSING DATE, EXCEPT IN
THE CASE OF CLAUSE (B), TO THE EXTENT SUCH LIABILITY IS A RETAINED LIABILITY;
(IV)
EXCEPT FOR THE LIABILITIES