EXHIBIT 2.4
INSTRUMENT OF ASSUMPTION OF LIABILITIES
This Instrument of Assumption of Liabilities dated as of April 30, 1998,
is made by Xxxxx, Inc., a Massachusetts corporation (the "Buyer"), in favor of
GSE Erudite Software, Inc. a Delaware corporation (the "Seller"). All
capitalized words and terms used in this Instrument of Assumption of
Liabilities and not defined herein shall have the respective meanings ascribed
to them in the Asset Purchase Agreement dated as of April 30, 1998, among the
Seller, the Buyer and GSE Systems, Inc. (the "Agreement").
WHEREAS, pursuant to the Agreement, the Seller has agreed to sell,
transfer, convey, assign and deliver to the Buyer substantially all of the
assets and business associated with the Seller referred to in the Agreement;
and
WHEREAS, in partial consideration therefor, the Agreement requires the
Buyer to assume certain of the liabilities of the Seller;
NOW, THEREFORE, in consideration of the mutual promises set forth in the
Agreement and other good and valuable consideration, the receipt of which is
hereby acknowledged, the Buyer hereby agrees as follows:
1. The Buyer hereby assumes and agrees to perform, pay and discharge
all of the Assumed Liabilities set forth on Schedule 1.3 hereto.
2. Notwithstanding the foregoing, the Buyer does not assume or agree
to perform, pay or discharge, and the Seller shall remain unconditionally
liable for, all obligations, liabilities and commitments, fixed or contingent,
of the Seller other than the Assumed Liabilities.
3. Nothing contained herein shall require the Buyer to perform, pay or
discharge any liability, obligation or commitment expressly assumed by the
Buyer herein so long as the Buyer in good faith contests or causes to be
contested the amount or validity thereof, subject, however, to the provisions
of Paragraph 6 below.
4. Nothing herein shall be deemed to deprive the Buyer of any defenses,
set-offs or counterclaims which the Seller may have had or which the Buyer
shall have against anyone other than the Seller with respect to any of the
obligations, liabilities and commitments hereby assumed (the "Defenses and
Claims"). The Seller hereby transfers, conveys and assigns to the Buyer all
Defenses and Claims and agrees to cooperate with the Buyer to maintain, secure,
perfect and enforce such Defenses and Claims, including the signing of any
documents, the giving of any testimony or the taking of any such other action
as is reasonably requested by the Buyer in connection with such Defenses and
Claims.
5. It is expressly understood and agreed that all liabilities,
obligations and commitments not assumed hereunder by the Buyer pursuant to
Paragraph 1 above shall remain the sole obligation of the Seller and its
respective successors and assigns.
6. The Buyer agrees to indemnify and hold harmless the Seller from and
against all claims, damages, losses, liabilities, costs and expenses, including
without limitation reasonable attorneys' fees, with respect to the failure of
the Buyer to pay, discharge or otherwise satisfy or perform, when due, the
liabilities, obligations and commitments hereby assumed by the Buyer. The
Seller shall give prompt written notice to the Buyer of the commencement of any
action, suit or proceeding relating to a third party claim for which
indemnification pursuant to this Paragraph 6 may be sought. Within 20 days
after delivery of such notification, the Buyer may, upon written notice thereof
to the Seller, assume control of the defense of such action, suit or proceeding
with counsel reasonably satisfactory to the Seller. If the Buyer assumes
control of such defense as provided in this Paragraph 6, the Seller shall
provide the Buyer with reasonable assistance in connection therewith, including
but not limited to reasonable access to documentation and personnel. If the
Buyer does not so assume control of such defense, the Seller shall control such
defense. The Seller shall not agree to any settlement of such action, suit or
proceeding without the prior written consent of the Buyer, which shall not be
unreasonably withheld. The Buyer shall not agree to any settlement of such
action, suit or proceeding without the prior written consent of the Seller,
which shall not be unreasonably withheld.
7. The Buyer, by its execution of this Instrument of Assumption of
Liabilities, and the Seller, by its acceptance of this Instrument of
Assumption of Liabilities, each hereby acknowledges and agres that neither the
representations and warranties nor the rights, obligations or remedies of
either party under the Agreement shall be deemed to be enlarged, modified or
altered in any way by such execution and acceptance of this instrument.
IN WITNESS WHEREOF, the Buyer and the Seller have caused this instrument
to be duly executed under seal as of the date first above written.
XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President - Finance
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[Corporate Seal]
Attest:
/s/ Xxxxx X. Xxxxx
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ACCEPTED:
GSE ERUDITE SOFTWARE, INC.
By: Xxxxxx X. Xxxxxxxxx
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Title: President
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