Asset Purchase Agreement (Page 3 of 5) in pdf

(d)the Real Property located at ______ and the personal property located thereon.

1.3.Assumption of Liabilities.

(a)Subject to the terms and conditions hereof, at Closing the Buyer Parties shall assume and

agree to pay and discharge when due the following liabilities relating to the Assets and existing at or

arising on or after the Closing Date (collectively, the “Assumed Liabilities”):

(i)liabilities, obligations and commitments relating exclusively to the Business or the

Assets that are (x) reflected on the Audited Balance Sheet or (y) incurred after the date of the

Audited Balance Sheet in the ordinary course of business consistent with prior practice and in

accordance with the terms of this Agreement, except, in each case, for (A) liabilities related to

product liability claims, (B) Environmental Liabilities and Costs, (C) liabilities for Taxes, (D

) liabilities in respect of Employees or Seller Benefit Plans except to the extent specifically

assumed by Buyer pursuant to Article VI, and (E) intercompany accounts payable which do

not represent trade accounts payable;

(ii)liabilities, obligations and commitments (x) arising out of the agreements set forth

on Schedule 2.7(a) (or not required to be set forth therein because of the amount involved),

but not including any obligation or liability for any breach thereof occurring prior to the

Closing Date or (y) listed on Schedule 1.3(a)(ii); and

(iii)liabilities in respect of Transferred Employees to the extent specifically assumed by

Buyer pursuant to Article VI.

(b)At Closing, Buyer shall, or shall cause one of the Buyer Parties to, assume the Assumed

Liabilities by executing and delivering to Seller an assumption agreement in a form reasonably

satisfactory to Seller (the “Assumption Agreement”) or shall assume the foreign Assumed Liabilities in

accordance with the respective Foreign Acquisition Agreement.

1.4.Excluded Liabilities. Notwithstanding the provisions of Section 1.3 or any other provision

hereof or any schedule or exhibit hereto (and regardless of any disclosure to Buyer), Buyer shall not

assume any liabilities, obligations or commitments of any Seller relating to or arising out of the

operation of the Business or the ownership of the Assets prior to the Closing other than the Assumed

Liabilities (the “Excluded Liabilities”).

1.5.Consent of Third Parties. Notwithstanding anything to the contrary herein, this

Agreement shall not constitute an agreement to assign or transfer any interest in any Governmental

Approval or Contract or any claim or right arising thereunder if such assignment or transfer without

the consent or approval of a third party would constitute a breach thereof or affect adversely the

rights of Buyer thereunder, and any such transfer or assignment shall be made subject to such consent

or approval being obtained. In the event any such consent or approval is not obtained prior to

Closing, Seller shall continue its reasonable best efforts to obtain any such consent or approval after

Closing, and Seller will cooperate with Buyer in any lawful and economically feasible arrangement to

provide that Buyer shall receive the interest of Seller in the benefits under any such Governmental

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