CONNECTION WITH THE TRANSACTION;
(VII)
EXCEPT AS SET FORTH IN SECTION 2.2(B), ALL EMPLOYMENT LIABILITIES
AND ALL LIABILITIES ARISING UNDER OR WITH RESPECT TO ANY PENSION PLAN;
(VIII)
SELLER'S RETAINED ENVIRONMENTAL LIABILITIES;
(IX)
ALL LIABILITIES FOR LEGAL, ACCOUNTING, AUDIT AND INVESTMENT
BANKING FEES, BROKERAGE COMMISSIONS, AND ANY OTHER EXPENSES INCURRED BY THE
SELLER IN CONNECTION WITH THE TRANSACTION;
(X)
ALL LIABILITIES FOR OR RELATED TO INDEBTEDNESS OF SELLER, 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;
(XI)
ALL LIABILITIES THAT ARE ATTRIBUTABLE TO ANY OF THE EXCLUDED
ASSETS;
(XII)
ALL LIABILITIES OF SELLER WITH RESPECT TO ACCOUNTS PAYABLE;
(XIII)
ALL LIABILITIES OF SELLER FOR INJURY TO OR DEATH OF PERSONS
(INCLUDING, WITHOUT LIMITATION, WORKERS' COMPENSATION CLAIMS) OR DAMAGES TO OR
DESTRUCTION OF PROPERTIES OR ASSETS, ARISING FROM THE SALE OR DISTRIBUTION OF
PRODUCTS DISTRIBUTED, OR BUSINESS SERVICES PROVIDED, BY SELLER ON OR BEFORE THE
CLOSING DATE, WHETHER OR NOT ANY SUCH LIABILITY ARISES BEFORE OR AFTER THE
CLOSING DATE, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR CONSEQUENTIAL AND
PUNITIVE DAMAGES IN CONNECTION WITH THE FOREGOING; AND
(XIV)
ALL LIABILITIES OTHER THAN ASSUMED LIABILITIES.
11
2.3
Closing.
(A)
THE CONSUMMATION OF THE PURCHASE AND SALE OF THE PURCHASED ASSETS
(THE "CLOSING") SHALL TAKE PLACE AT SUCH PLACE AS BUYER AND SELLER MUTUALLY
AGREE, AT 10:00 A.M. LOCAL TIME, ON THE CLOSING DATE UNLESS OTHERWISE MUTUALLY
AGREED BY BUYER AND SELLER.
THE CLOSING SHALL BE DEEMED TO BE EFFECTIVE AS OF
12:01 A.M., LOCAL TIME, AT THE PLACE WHERE THE PURCHASED ASSETS ARE LOCATED ON
THE APPLICABLE CLOSING DATE (THE "CLOSING TIME").
(B)
AS SOON AS PRACTICABLE FOLLOWING THE DATE HEREOF AND AT ALL TIMES
UNTIL THE CLOSING OF THE PURCHASE BY BUYER OF ALL OF THE PURCHASED ASSETS LISTED
OR DESCRIBED IN SECTION 2.1(B), BUYER AND SELLER SHALL COOPERATE IN GOOD FAITH
TO (I) FORMULATE AND EFFECT A PLAN AND CLOSING SCHEDULE FOR THE TRANSFER OF THE
PURCHASED ASSETS AND THE BUSINESS TO BUYER PURSUANT TO THIS AGREEMENT, AND
(II) IDENTIFY THE PURCHASED ASSETS TO BE PURCHASED BY BUYER PURSUANT TO THIS
AGREEMENT AT THE CLOSING, AND (III) IDENTIFY THE ASSUMED LIABILITIES TO BE
ASSUMED BY BUYER PURSUANT TO THIS AGREEMENT AT THE CLOSING.
(C)
AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE CLOSING DATE, SELLER
SHALL FURNISH TO BUYER THE PRELIMINARY FIXED ASSET AND INVENTORIES STATEMENT
INDICATING THE PRELIMINARY NET ASSET VALUE AS OF SUCH DATE.
BUYER SHALL HAVE
BEEN GIVEN FULL ACCESS TO THE RELEVANT RECORDS AND WORKING PAPERS USED BY SELLER
TO PREPARE THE PRELIMINARY FIXED ASSET AND INVENTORIES STATEMENT.
THE
PRELIMINARY FIXED ASSET AND INVENTORIES STATEMENT SHALL BE REASONABLY ACCEPTABLE
TO BUYER; PROVIDED, HOWEVER, THAT THE PRELIMINARY FIXED ASSET AND INVENTORIES
STATEMENT SHALL BE DEEMED TO BE REASONABLY ACCEPTABLE TO BUYER IF PREPARED IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(D)
AT THE CLOSING, ON THE TERMS AND SUBJECT TO THE CONDITIONS SET