Form Apa - Asset Purchase Agreement Page 3
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461
"Buyer's Disclosure Schedule" shall mean a schedule executed and delivered by
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Buyer to Seller as of the date hereof which sets forth exceptions to the representations
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and warranties contained in Article V.
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"Code" shall mean the Internal Revenue Code of 1986, as amended, and the rules
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and regulations thereunder.
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"Confidentiality Agreement" shall mean the Confidentiality Agreement, dated as
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of [________], 200__, between Seller and Buyer.
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"Contract" shall mean any agreement, contract, obligation, promise, or
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undertaking that is legally binding to which Seller is a party or is bound and which relates
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exclusively to the Business, whether oral or written, but excluding all Employee Plans,
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this Agreement, the Ancillary Agreements, the Intellectual Property Purchase and
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License Agreement and the Transition Trademark License.
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"Court Order" shall mean any judgment, decision, consent decree, injunction,
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ruling or order of any federal, state or local court or governmental agency, department or
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authority that is binding on any person or its property under applicable law.
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"Damages" shall mean the amount of any loss, claim, demand, liability,
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obligations, damage, deficiency, assessment, judgment, penalty, cost or expense
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(including reasonable attorneys' fees), net of any insurance proceeds or tax benefits
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received with respect thereto.
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"Disclosure Schedules" shall mean collectively the Buyer's Disclosure Schedule
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and the Seller's Disclosure Schedule.
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"Encumbrance" shall mean any claim, lien, pledge, option, charge, easement,
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security interest, deed of trust, mortgage, right-of-way, encroachment, building or use
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restriction, conditional sales agreement, encumbrance or other right of third parties,
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whether voluntarily incurred or arising by operation of law, including, without limitation,
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any agreement to give any of the foregoing in the future, and any contingent sale or other
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title-retention agreement or lease in the nature thereof.
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"Environmental Laws" shall mean any laws or regulations of any federal, state, or
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local governmental or regulatory authority enacted or promulgated as of the date of this
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Agreement which govern the emission, discharge or release of Hazardous Materials. For
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purposes hereof, the term "Hazardous Materials" shall mean any explosives, radioactive
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materials, polychlorinated biphenyls, petroleum and petroleum by-products, "hazardous
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waste," as defined by Section 1004(5) of the Solid Waste Disposal Act, as amended
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("SWDA"), and 42 U.S.C. § 6903(5) as enacted as of the date hereof, and regulations of
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the U.S. Environmental Protection Agency ("EPA") promulgated thereunder as of the
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date hereof, and "hazardous substances," as defined by Section 101(14) of the
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Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
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amended ("CERCLA"), 42 U.S.C. § 9601(14), and EPA regulations promulgated
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thereunder as of the date hereof.
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Form APA.doc
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