Common use of Liabilities Assumed by Purchaser Clause in Contracts

Liabilities Assumed by Purchaser. As further consideration for the purchase of the Acquired Assets and consummation of the other transactions contemplated hereby, on the Closing Date, Purchaser shall assume and agree to perform and discharge in full, when due, the liabilities of Seller and the Business arising under or associated with (collectively, the “Assumed Liabilities”): (a) Purchaser’s conduct of the Business after the Closing Date, including with respect to the use of the Acquired Assets and the hiring and employment of the Employees; provided that: (i) obligations for services rendered both prior to and after the Closing Date will be allocated between Purchaser and Seller based on the Closing Date (e.g., an invoice for services rendered for the third quarter would be allocated 1/3 to Seller as an Excluded Liability and 2/3 to Purchaser as an Assumed Liability; (b) All product liability claims caused by or the result of any product produced or manufactured by Purchaser after Closing; (c) All outstanding warranty claims and all warranty claims asserted in writing from and after the Closing; (d) Any recalls by a third party of a product of such third party which utilizes a product sold, distributed or otherwise placed in the stream of commerce by Purchaser in the Business after Closing (other than any such product that was manufactured by Seller on or before Closing), or manufactured by Purchaser in the Business after Closing; (e) Except as expressly provided in Section 2.3 below, any of the following matters: (i) any violation of any Environmental Law with respect to the operation of the Business; and (ii) any generation, treatment, storage, transport, management, use, handling, disposal, leakage, spill or release of any Hazardous Material with respect to the operation of the Business on, under or migrating from the Owned Real Property (collectively, items (i) and (ii) are hereinafter sometimes referred to as the “Environmental Liabilities”), regardless of when or where such Environmental Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing; and (f) The Assumed Contracts.

Liabilities Assumed by Purchaser. As further consideration for the purchase of the Acquired Assets and consummation of the other transactions contemplated hereby, on the Closing Date, Purchaser shall, and Parent shall cause Purchaser to, assume and agree to pay, perform and discharge in full, when due, the following liabilities of Seller and with respect to the Business (the "Assumed Liabilities") by execution and delivery to Seller of an instrument of assumption reasonably satisfactory to Seller (the "Instrument of Assumption"): (a) All obligations and liabilities arising under or associated with the Assumed Contracts, including all obligations and liabilities arising under or associated with any Assumed Contract requiring the consent of any third party to be assigned to Purchaser pursuant hereto, regardless of whether such consent is delivered to Purchaser at or after Closing; provided, however, that the obligations and liabilities arising under and associated with any Assumed Contract that is the subject of a Material Consent (collectivelyas defined in Section 6.2(h)) listed on Schedule 6.2(h) hereto shall be assumed, paid, performed and discharged by Purchaser if, and only if, such Material Consent is delivered to Purchaser at Closing; and provided further, however, that the “Assumed Liabilities shall not include any pension or welfare benefit plan liabilities arising under or associated with the Union Contracts for periods prior to Closing other than any such welfare benefit plan liabilities that are reflected on, accrued for or reserved against on the Final Closing Working Capital Statement, which shall be Assumed Liabilities”): (a) Purchaser’s conduct of the Business after the Closing Date, including with respect to the use of the Acquired Assets and the hiring and employment of the Employees; provided that: (i) obligations for services rendered both prior to and after the Closing Date will be allocated between Purchaser and Seller based on the Closing Date (e.g., an invoice for services rendered for the third quarter would be allocated 1/3 to Seller as an Excluded Liability and 2/3 to Purchaser as an Assumed Liability; (b) All product liability claims caused by accounts payable and other liabilities reflected on, accrued for or reserved against in the result of any product produced or manufactured Final Closing Working Capital Statement, but only to such extent, including all accrued payroll, accrued vacation and accrued sick pay liabilities, medical program liabilities, all accrued payroll Taxes, all accrued real and personal property Taxes (all such Taxes being assumed by Purchaser after Closingare referred to in this Agreement as the "Affected Taxes"), workers' compensation claims, and all other current liabilities of Seller with respect to the Business; (c) All product repair and product replacement claims that arise under, and are made pursuant to and consistent with, the terms of Seller's standard outstanding warranty claims and all warranty claims asserted obligations, which terms are specifically identified on Schedule 4.17 hereto (but excluding any Product Liability Claims (as defined in writing from Section 7.1(e)) with respect to any goods manufactured or sold or services provided by the Business before and after Closing, but only to the Closing;extent reflected on, accrued for or reserved against in the Final Closing Working Capital Statement; and (d) Any recalls by a third party The employment and retention obligations of a product of such third party which utilizes a product sold, distributed or otherwise placed in the stream of commerce by Purchaser in the Business after Closing (other than any such product that was manufactured by Seller set forth on or before ClosingSchedule 2.2(d), or manufactured by Purchaser in the Business after Closing; (e) Except as expressly provided in Section 2.3 below, any of the following matters: (i) any violation of any Environmental Law with respect to the operation of the Business; and (ii) any generation, treatment, storage, transport, management, use, handling, disposal, leakage, spill or release of any Hazardous Material with respect to the operation of the Business on, under or migrating from the Owned Real Property (collectively, items (i) and (ii) are hereinafter sometimes referred to as the “Environmental Liabilities”), regardless of when or where such Environmental Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing; and (f) The Assumed Contracts.

Liabilities Assumed by Purchaser. As further consideration for (a) Subject to Section 3.2, at the purchase Closing, Purchaser will assume, as of the Acquired Assets and consummation of the other transactions contemplated hereby, on the Closing Date, Purchaser shall assume and agree to perform will subsequently pay, honor and discharge when due and payable and otherwise in fullaccordance with their terms, when due(i) all liabilities and obligations of Seller (other than the Retained Liabilities) arising under the terms of the Assigned Contracts, but only to the extent not delinquent or otherwise accrued (but only to the extent such accruals are included in the Closing Working Capital Balance); PROVIDED, HOWEVER, that Purchaser will assume warranty obligations up to the amount set forth in SCHEDULE 6.1.25, (II) all liabilities of Seller a type included under the caption "Current Liabilities" in the Pro Forma Working Capital Calculation (but only to the extent they are included in the Closing Working Capital Balance), (iii) and any obligations described on SCHEDULE 3.1(A)(III) arising upon the acceptance by a customer of the Business arising under of an open bid described on SCHEDULE 3.1(A)(III), and (iv) the obligation to pay the calendar year 2000 bonuses to the persons, in the amounts (less applicable payroll taxes and withholdings required by law) and on the dates set forth in each case in SCHEDULE 3.1(A)(IV); PROVIDED, HOWEVER, that Purchaser will not assume or associated with (collectively, the “Assumed Liabilities”): be responsible for any such liabilities or obligations (a) Purchaser’s conduct of the Business after the Closing Date, including with respect to the use type listed in EXHIBIT C as "Compensation," "Progress Billings," "Intercompany Payable (Ceilcote)," "Intercompany Payable (IXXX)," "Income Taxes Payable," "Deferred Income Taxes," "Other Current Liabilities" or "Current Maturities of the Acquired Assets and the hiring and employment of the Employees; provided that: (i) obligations Long-Term Obligations" or for services rendered both prior to and after the Closing Date will be allocated between Purchaser and Seller based on the Closing Date (e.g., an invoice for services rendered for the third quarter would be allocated 1/3 to Seller as an Excluded Liability and 2/3 to Purchaser as an Assumed Liability; cash overdrafts or (b) All product liability claims caused from any breach or default by Seller under any Assigned Contract, all of which liabilities and obligations will constitute Retained Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any document delivered in connection herewith, Purchaser's obligations in respect of the result Assumed Liabilities will not extend beyond the extent to which Seller was obligated in respect thereof and will be subject to Purchaser's right to contest in good faith the nature and extent of any product produced liability or manufactured by Purchaser after Closing; (c) All outstanding warranty claims and all warranty claims asserted in writing from and after the Closing; (d) Any recalls by a third party of a product of such third party which utilizes a product sold, distributed or otherwise placed in the stream of commerce by Purchaser in the Business after Closing (other than any such product that was manufactured by Seller on or before Closing), or manufactured by Purchaser in the Business after Closing; (e) Except as expressly provided in Section 2.3 below, any of the following matters: (i) any violation of any Environmental Law with respect to the operation of the Business; and (ii) any generation, treatment, storage, transport, management, use, handling, disposal, leakage, spill or release of any Hazardous Material with respect to the operation of the Business on, under or migrating from the Owned Real Property (collectively, items (i) and (ii) are hereinafter sometimes referred to as the “Environmental Liabilities”), regardless of when or where such Environmental Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing; and (f) The Assumed Contractsobligation.

Liabilities Assumed by Purchaser. As further consideration for (a) Subject to Section 3.2, at the purchase Closing, Purchaser will assume, as of the Acquired Assets Closing Date, and consummation will subsequently pay, honor and discharge when due and payable and otherwise in accordance with their terms, the following liabilities and obligations of Seller to the other transactions contemplated hereby, extent existing on the Closing Date, Purchaser shall assume and agree to perform and discharge in full, when due, the liabilities of Seller and the Business arising under or associated with (collectively, the “Assumed Liabilities”): (a) Purchaser’s conduct of the Business after the Closing Date, including with respect to the use of the Acquired Assets and the hiring and employment of the Employees; provided that: (i) obligations for services rendered both (x) all Accounts Payable and Accrued Expenses only to the extent reflected on the Audited December 1998 Balance Sheet and not discharged prior to the Closing Date, and (y) all Accounts Payable and Accrued Expenses arising thereafter and to the extent reflected on the Closing Date Balance Sheet, in the case of liabilities described in clauses (x) and (y) of this clause 3.1 (a) (i), to the extent that such liabilities arose in the Ordinary Course of Business of Seller and were not incurred in breach of this Agreement; (ii) all liabilities and obligations under Contracts to which Seller is a party that (A) are disclosed in SCHEDULE 6.1.12(a) and SCHEDULE 6.1.16(b); PROVIDED that the existence of such Contract does not constitute a breach of representation, warranty or covenant under this Agreement, and (B) have been entered into by Seller in the Ordinary Course of Business of Seller prior to the Closing Date and not in breach of this Agreement, in each case other than liabilities and obligations thereunder that relate to a breach by Seller of any of the terms and conditions of any such Contracts prior to the Closing Date; (iii) all liabilities or obligations to Transferred Employees in accordance with, and subject to the limitations set forth in, Section 8.5 with respect to wages, salaries, bonus, vacation, severance or other compensation reflected on the Closing Date Balance Sheet (to the extent not discharged prior to the Closing Date) or otherwise accruing on and after the Closing Date PROVIDED that the existence thereof does not constitute a breach of any representation, warranty or covenant of Seller hereunder, it being understood that severance liabilities that arise in connection with constructive termination of such Transferred Employee resulting from the terms and conditions of the offer of employment made by Purchaser in compliance with Section 8.5 will be allocated between not constitute Assumed Liabilities; (iv) except as provided in Section 3.2(a)(iii), liabilities or obligations under any employee benefit plan within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and any other plan, program, agreement, arrangement, policy, contract, commitment, or scheme, written or oral, statutory or contractual of Seller, including, but not limited to, any deferred compensation agreement, executive compensation, bonus, incentive or severance pay plan, any life, health, disability or accident insurance plan or any holiday or vacation practice under which employees or former employees of Seller are eligible to participate or derive a benefit and as to which Seller has or in the future could have any direct or indirect actual or contingent liability (hereinafter the "BENEFIT PLANS") but only to the extent liabilities or obligations relate or pertain to a Transferred Employee; PROVIDED that the existence of such Benefit Plans does not constitute a breach of any representation, warranty or covenant of Seller hereunder; PROVIDED FURTHER that severance liabilities that result from the failure of any employees of Seller to accept employment by Purchaser and Seller based in compliance with Section 8.5 will not constitute Assumed Liabilities; (v) the obligation to issue credit as appropriate in the Ordinary Course of Business of Seller; (vi) any liability for Employee Bonus Accruals, but only to the extent that such amount is accurately reflected on the Closing Date (e.g., an invoice for services rendered for Working Capital Balance Sheet and in the third quarter would be allocated 1/3 to calculation of the Base Working Capital Balance and PROVIDED that Seller as an Excluded Liability and 2/3 to Purchaser as an Assumed Liability;has complied with its obligations under Section 8.14; and (b) All product liability claims caused by or the result of any product produced or manufactured by Purchaser after Closing; (c) All outstanding warranty claims and all warranty claims asserted in writing from and after the Closing; (d) Any recalls by a third party of a product of such third party which utilizes a product sold, distributed or otherwise placed in the stream of commerce by Purchaser in the Business after Closing (other than any such product that was manufactured by Seller on or before Closing), or manufactured by Purchaser in the Business after Closing; (e) Except as expressly provided in Section 2.3 below, any of the following matters: (ivii) any violation other liability of any Environmental Law with respect to the operation Seller arising out of the Business; and (ii) any generation, treatment, storage, transport, management, use, handling, disposal, leakage, spill or release of any Hazardous Material with respect relating to the operation of the Business on, by Seller prior to the Closing Date in the Ordinary Course of Business (other than to the extent that the existence of any such liability constitutes a breach of any representation or warranty under or migrating from this Agreement and other than to the Owned Real Property (collectively, items extent that the assumption of any such liability is otherwise limited by clauses (i) and through (iivi) of this Section 3.1(a)). (b) The liabilities to be assumed by Purchaser pursuant to Section 3.1(a) are hereinafter sometimes collectively referred to as the “Environmental Liabilities”), regardless of when or where such Environmental Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing; and (f) The Assumed Contracts"ASSUMED LIABILITIES."

Liabilities Assumed by Purchaser. As further consideration for the purchase The assets and liabilities of the Acquired Assets Corporation are as quantified and consummation described in the Financial Statements (as defined below). The valuation of the assets and liabilities of the Corporation shall be agreed to by Purchaser and Sellers at Closing. Loans payable due each of the Sellers under Long Term Liabilities on the preliminary balance sheet at Closing shall be obligations of Sellers and shall be removed from the final balance sheet as of Closing. In the event that the remaining net assets, assets less liabilities, of the Corporation is negative the Sellers agree to reduce amounts owed to them by the Corporation, which are disclosed under current liabilities on the Closing balance sheet, in order to adjust net assets to zero (0). If, after reducing all amounts due Sellers as of Closing, net assets of the Corporation remain negative the Purchase Price shall be reduced by such negative amount and shall be applied against the first cash payment. Other than as included in the Financial Statements and as otherwise may be agreed to by the parties pursuant to this Agreement, Purchaser and Sellers agree that Purchaser shall not assume, nor shall Purchaser in any way be deemed responsible for, any other transactions contemplated herebyliability, on obligation, claim or commitment, contingent, actual or otherwise, known or unknown , of the Corporation, or any of its, directors, officers, employees or agents (including Sellers), it being expressly understood and agreed that Sellers shall be responsible for any such undisclosed liabilities up to and including the Closing Date, including, but not limited to, any undisclosed sales, income, payroll or other taxes, and any undisclosed obligations to suppliers (of goods or services), distributors, warehouses, shippers, truckers, attorneys, accountants, lenders, employees, officers and directors, and contractors. Notwithstanding the preceding sentence, Purchaser shall specifically agrees that it will, at and upon the Closing, assume those certain liabilities and agree to perform obligations contained in the Financial Statements and discharge as fully set forth in full, when due, the liabilities of Seller Schedule “C” attached hereof and the Business arising under or associated with made a part hereof (collectively, the “Assumed Liabilities”): ) including, without limitation, those certain accounts payable to Wxxxxxxx Distillers (a) Purchaser’s conduct for production of Olifant Vodka prior to the December 1, 2008). Purchaser agrees to pay on terms that purchaser reserves the right to negotiate the payment and timing of payment with Wxxxxxxx Distiller, those account payables fully set forth in Schedule "C" owed to Wxxxxxxx Distillers. In order to guarantee and secure to Purchaser that there are no undisclosed liabilities of the Business after Corporation, all payments to Sellers on account of the Closing DateNote and the Contingent Consideration outlined on Exhibit B shall be pledged as collateral security for Purchaser therefore, including with respect such that to the use of extent that, after Closing, Purchaser or the Acquired Assets Corporation are called upon to pay or discharge any undisclosed liabilities, Purchaser shall have the right (amongst all other rights at law and the hiring and employment of the Employees; provided that: (iin equity) obligations for services rendered both prior to and after offset any such undisclosed liabilities against any such Note or Contingent Consideration payments. Should Purchaser claim an offset it shall send written notice to Sellers. The Purchasers right to apply such offsets shall terminate 18 months from the Closing Date will be allocated between except for liabilities for federal , state and local taxes which shall survive for the period of any statutes of limitations with respect thereto.. No such termination shall relieve Sellers of any remaining undisclosed liabilities or contingencies not agreed upon and assumed by Purchaser at Closing. Once an offset amount is agreed to by Purchaser and Seller based on Sellers, such offset shall be applied, pro rata as to the Closing Date (e.g.value of the cash and stock consideration, an invoice for services rendered against the next due installment payment. Upon any offset Purchaser shall assign all of its rights in any offset item to Sellers and should Purchaser subsequently recover any item it has offset, it shall promptly reimburse Sellers for the third quarter would be allocated 1/3 to Seller as an Excluded Liability and 2/3 to Purchaser as an Assumed Liability; (b) All product liability claims caused by or the result of any product produced or manufactured by Purchaser after Closing; (c) All outstanding warranty claims and all warranty claims asserted in writing from and after the Closing; (d) Any recalls by a third party of a product value of such third party which utilizes a product sold, distributed or otherwise placed in the stream of commerce by Purchaser in the Business after Closing (other than any such product that was manufactured by Seller on or before Closing), or manufactured by Purchaser in the Business after Closing; (e) Except as expressly provided in Section 2.3 below, any of the following matters: (i) any violation of any Environmental Law with respect to the operation of the Business; and (ii) any generation, treatment, storage, transport, management, use, handling, disposal, leakage, spill or release of any Hazardous Material with respect to the operation of the Business on, under or migrating from the Owned Real Property (collectively, items (i) and (ii) are hereinafter sometimes referred to as the “Environmental Liabilities”), regardless of when or where such Environmental Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing; and (f) The Assumed Contractsrecovery.

Liabilities Assumed by Purchaser. As further consideration for At the purchase of the Acquired Assets and consummation of the other transactions contemplated hereby, on the Closing DateClosing, Purchaser shall assume agrees to assume, and agree to thereafter pay, fully satisfy and perform when due in accordance with their respective terms, all liabilities and discharge in full, when due, the liabilities of Seller and the Business arising under or associated with (collectively, the “Assumed Liabilities”): (a) Purchaser’s conduct obligations of the Business after the Closing Date, including with respect to the use of the Acquired Assets and the hiring and employment of the Employees; provided that: (i) obligations for services rendered both prior to and after the Closing Date will be allocated between Purchaser and Seller based on the Closing Date (e.g., an invoice for services rendered for the third quarter would be allocated 1/3 to Seller as an Excluded Liability and 2/3 to Purchaser as an Assumed Liability; (b) All product liability claims caused by or the result of any product produced or manufactured by Purchaser after Closing; (c) All outstanding warranty claims and all warranty claims asserted in writing from and after the Closing; (d) Any recalls by a third party of a product of such third party which utilizes a product sold, distributed or otherwise placed in the stream of commerce by Purchaser in the Business after Closing (other than any such product that was manufactured by Seller on or before Closing), or manufactured by Purchaser in the Business after Closing; (e) Except as expressly provided in Section 2.3 below, any of the following matters: (i) any violation of any Environmental Law with respect to the operation of the Business; and (ii) any generation, treatment, storage, transport, management, use, handling, disposal, leakage, spill or release of any Hazardous Material with respect to the operation of the Business on, under or migrating from the Owned Real Property (collectively, items (i) and (ii) are hereinafter sometimes referred to as the “Environmental Liabilities”), regardless of when or where such Environmental Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing, except as expressly provided below and except for those expressly retained by Seller pursuant to the terms of Section 1.08 hereof, including, without limiting the generality of the foregoing, all of the following (such liabilities and obligations being hereinafter referred to collectively as the "Assumed Liabilities"): ------------------- (a) all liabilities and obligations of Seller for the trade accounts payable attributable exclusively to the Business except for those expressly not assumed pursuant to the terms of Section 1.08 below; (b) all obligations and liabilities of Seller under the Contracts listed on Schedule 1.01(d), including those arising prior to the Closing Date to ---------------- the extent reflected on the Final Closing Balance Sheet; (c) all liabilities and obligations of Seller under the Leases listed in Section 3.19 of the Disclosure Schedule, including those arising prior to the ------------ Closing Date to the extent reflected on the Final Closing Balance Sheet; (d) all liabilities and obligations of Seller in the nature of a liability claim or warranty claim and arising with respect to any products sold by or services rendered by Seller exclusively in connection with the Business prior to Closing, including but not limited to the liabilities and claims known to the Seller; provided that Seller has disclosed all known liabilities and claims to Purchaser before the Closing and provided further that Purchaser shall be entitled to the proceeds of any insurance covering such liabilities and claims; (e) all liabilities and obligations accruing subsequent to the Closing with respect to utilities and Taxes on the Owned Real Property and personal property of the Business acquired by the Purchaser; (f) all liabilities and obligations of Seller pursuant to the collective bargaining agreements listed on Section 3.24(b) of the Disclosure --------------- Schedule; (g) except as provided in Section 1.08(f) all claims made by New Employees and their beneficiaries attributable to the Business for costs incurred after the Closing Date relating to illness or injuries that arise or commence before or after the Closing Date, including but not limited to the liabilities and claims known to the Seller; (h) all claims, actions, proceedings, citations, notices of violations, orders, administrative, civil or criminal fines or penalties (in each case whether known or unknown) under the Occupational Safety and Health Act and the regulations thereunder or similar legislation, rules and regulations in respect of or as a result of events (whether known or unknown) that are related exclusively to the Business, including but not limited to the liabilities and claims known to the Seller provided that Seller has disclosed all known claims, actions, proceedings, citations, notices of violations, orders, administrative, civil or criminal fines or penalties to Purchaser before the Closing; and provided further that Purchaser shall be entitled to the proceeds of any insurance covering such liabilities and claims; (i) any claims, actions, proceedings, citations, notices of violations, orders, administrative, civil fines or penalties (in each case whether known or unknown) by any governmental authority or agency or by non- governmental third parties under, or any damages or liabilities resulting from, the violation of any Environmental Laws with respect to the Business or with respect to any site or facility to which Seller, in connection with the Business, has sent, either directly or indirectly, Regulated Materials for storage, treatment, disposal or other management; provided that Seller has disclosed all known liabilities and claims to Purchaser before the Closing and provided further that Purchaser shall be entitled to the proceeds of any insurance covering such liabilities and claims; (j) all liabilities and obligations with respect to sales or use Taxes, if any, payable as a direct result of the consummation of the transaction contemplated by this Agreement; (k) all claims for severance pay under PDM's regular and special severance policies described in Schedule 5.01 by any New Employee who is ------------- terminated by Purchaser without cause as of or within one year after the Closing; and (fl) The Assumed Contractsall liabilities and obligations of any nature whatsoever attributable to the Business except those expressly excluded pursuant to the terms of Section 1.08 hereof.