Assumed Contracts and Leases (collectively,
the "Assumed Liabilities").
2.4
Excluded Liabilities. Except for the Assumed
Liabilities, which shall be liabilities and obligations of Buyer, Buyer shall
not assume any liabilities or obligations of any kind or nature, whether
absolute, contingent, accrued, known or unknown, of Sellers or any Affiliate of
a Seller or the Business.
2.5
Instrument of Transfer. The sale of the
Assets and the assumption of the Assumed Liabilities as herein provided shall be
effected at Closing by the Assignment, Assumption and Bill of Sale Agreement in
the form attached hereto as Exhibit 2.5 ("Bill of Sale").
2.6
Completion of Transfers.
(A)
THE ENTIRE BENEFICIAL INTEREST IN AND TO,
AND THE RISK OF LOSS WITH RESPECT TO, THE PURCHASED ASSETS AND THE ASSUMED
LIABILITIES SHALL, REGARDLESS OF WHEN LEGAL TITLE THERETO SHALL BE TRANSFERRED
TO BUYER, PASS TO BUYER AT CLOSING AS OF THE EFFECTIVE TIME. ALL OPERATIONS OF
THE BUSINESS SHALL BE FOR THE ACCOUNT OF SELLERS UP TO THE EFFECTIVE TIME AND
SHALL BE FOR THE ACCOUNT OF BUYERS THEREAFTER. IN THE EVENT LEGAL TITLE TO ANY
OF THE PURCHASED ASSETS OR THE ASSUMED LIABILITIES IS NOT TRANSFERRED AT
CLOSING, SELLER SHALL HOLD SUCH PURCHASED ASSETS OR ASSUMED LIABILITIES AS
NOMINEE FOR BUYERS UNTIL COMPLETION OF SUCH TRANSFERS.
(B)
IN THE EVENT THAT THE LEGAL INTEREST IN ANY
OF THE PURCHASED ASSETS OR THE ASSUMED LIABILITIES TO BE SOLD, ASSIGNED,
TRANSFERRED OR CONVEYED PURSUANT TO THIS AGREEMENT, OR ANY CLAIM, RIGHT OR
BENEFIT ARISING THEREUNDER OR RESULTING THEREFROM CANNOT BE SOLD, ASSIGNED,
TRANSFERRED OR CONVEYED HEREUNDER AS OF THE EFFECTIVE TIME BECAUSE ANY WAITING
OR NOTICE PERIOD HAS NOT EXPIRED OR ANY CONSENTS OR APPROVALS REQUIRED FOR SUCH
SALE, ASSIGNMENT, TRANSFER OR CONVEYANCE HAVE NOT BEEN OBTAINED OR WAIVED, THE
LEGAL INTEREST IN SUCH PURCHASED ASSETS OR ASSUMED LIABILITIES SHALL NOT BE
SOLD, ASSIGNED, TRANSFERRED OR CONVEYED UNLESS AND UNTIL SUCH WAITING OR NOTICE
PERIOD SHALL HAVE EXPIRED OR UNTIL APPROVAL, CONSENT OR WAIVER THEREOF IS
OBTAINED. IN SUCH EVENT, AT BUYERS' OPTION, BUYERS MAY ELECT TO WAIVE THE
CONDITION TO CLOSING REQUIRING SUCH CONSENT OR APPROVAL AND PROCEED WITH THE
CLOSING OR DELAY CLOSING UNTIL SUCH CONSENT OR APPROVAL IS OBTAINED BY SELLERS
AND DELIVERED TO BUYER. IF SUCH CONSENT OR APPROVAL HAS NOT BEEN OBTAINED BY
DECEMBER 9, 2005, SELLERS MAY ELECT TO TERMINATE THIS AGREEMENT. DURING ANY SUCH
PERIOD, SELLERS SHALL AT THEIR EXPENSE, USE REASONABLE DILIGENT EFFORTS TO SEEK
TO OBTAIN SUCH CONSENTS, APPROVALS OR WAIVERS AS MAY BE NECESSARY TO COMPLETE
SUCH TRANSFERS AS SOON AS PRACTICABLE. BUYERS WILL COOPERATE WITH SELLERS
EFFORTS WITH RESPECT THERETO AT BUYERS' EXPENSE. NOTWITHSTANDING THE FOREGOING,
TO THE EXTENT A LANDLORD OR LESSOR UNDER AN ASSUMED CONTRACT OR LEASE REQUIRES
THAT A REASONABLE ADMINISTRATIVE, PROCESSING, EXPEDITING OR LEGAL FEE BE PAID IN
CONNECTION WITH OBTAINING CONSENT OR APPROVAL FOR ASSIGNMENT, SELLER SHALL PAY
ANY SUCH FEE.
(C)
IN THE EVENT BUYERS ELECT TO CLOSE PRIOR TO
OBTAINING SUCH CONSENT OR APPROVAL, (I) SELLERS SHALL HOLD