Common use of Assumed and Excluded Liabilities Clause in Contracts

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain and be responsible, from and after the Closing, for (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, to the extent relating to, arising out of or resulting from any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain On the terms and be responsiblesubject to the conditions set forth in this Agreement, from and after at the Closing, for Purchaser (ior, if applicable, its Designee) shall assume from Seller and thereafter pay, perform or discharge in accordance with their terms, Seller’s cost to cure all monetary defaults arising under all Designated Contracts pursuant to Section 365(b) of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents Bankruptcy Code (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and ). (b) one Except for the Assumed Liabilities, Purchaser (or, if applicable, its Designee) will not assume and shall not become liable to pay, perform or more members discharge any Liability whatsoever of Seller or its Affiliates or relating to any of the Seller GroupAcquired Assets or the Business, as applicable, shall assume and be responsible for including but not limited to the following: (i) all of the Liabilities of the Transferred Companies Seller’s liabilities or obligations under this Agreement and any Exhibits or Schedules attached hereto; (ii) Seller’s liabilities or obligations for expenses or fees incident to the extent relating to, or arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Documentnegotiation, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery approval or authorization of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreementherein, including without limitation the fees and expenses of Seller’s attorneys, accountants, brokers, and other advisors; (iii) any accountantLiabilities under or related to any and all Benefit Plans, auditoror any plans, brokeragreements or arrangements relating to compensation or benefits, financial advisorthat are now or ever have been maintained or contributed to by Seller or any member of its Control Group (as defined under IRS Code Section 414(b), investment banker (c) or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (m)), (iv) any Collective Bargaining Agreements; (v) any Liabilities pursuant to any Contract that is not, or is no longer deemed to be pursuant to Section 1.2, a Designated Contract; (vi) other than cure amounts constituting Assumed Liabilities, any Liabilities (including Liabilities in respect of advances or loans, occupational safety, workers’ or workmen’s compensation, grievance proceedings or actual or threatened litigation, suits, claims, demands or governmental proceedings) that arose or were incurred on or before the Transferred Companies relating toClosing, arising or that are based on events occurring or conditions existing on or before the Closing, or that arose out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than related to the extent such Liabilities relate toownership, arise out operation, use or control of the Acquired Assets or result from the Transferred Business prior to the Closing; (vii) any liability or investigatory, corrective or remedial obligation (contingent or otherwise, and including any liability or obligation for response costs, personal injury, property damage or natural resource damage), whenever arising or occurring, arising under any local, state or federal environmental and safety requirements with respect to the Seller, the Seller’s Business, the Transferred CompaniesAcquired Assets, the ownership Designated Contracts, the Real Property or operation any other current or former operations or facilities of Seller or the Business (including without limitation any arising from the on-site or off-site release, threatened release, treatment, storage, disposal, or arrangement for disposal of any hazardous or toxic materials, substances, or wastes), whether or not constituting a breach of any representation or warranty herein or whether or not set forth on any disclosure schedule hereto (collectively, the “Environmental Liabilities”); (viii) any liabilities and obligations of Seller for federal, state, local or foreign Taxes that have accrued prior to the Closing Date, whether or not assessed, invoiced, or due and payable by the Closing Date, including but not limited to any liabilities related to Taxes arising as a result of such Seller at any time being a member of an affiliated group as defined in Section 1504(a) of the Transferred IRS Code, with any necessary prorations for Taxes in connection with Closing to be made in accordance with local custom and usage; and (ix) any liabilities and obligations of Seller for utility services related to any of the Acquired Assets or Designated Contracts, such as gas, electricity, water and sewer, to and through the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing Closing Date, based on a final reading for any utility service or, where such is unavailable as of the Closing Date, to based on a daily proration of such costs when the extent relating to, arising out of or resulting from any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after first xxxx covering the Closing, except as otherwise expressly provided in this Agreement (collectively, period including the “Excluded Liabilities”)Closing Date is received.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company Buyer shall assume or retain from the Seller and be responsiblethereafter pay, from and after the Closingperform, for and/or discharge in accordance with their respective terms: (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, liabilities arising out of or resulting from the Transferred Business, the Transferred Companies Sale Assets arising or the ownership or operation of the Transferred Assets, whether incurred before, on or becoming due after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of Seller’s obligations for commissions due and payable under the Assigned Contracts or Unassigned Assets or yet (to be novated Federal Government Contracts the extent set forth in Schedule 2.1.3) as provided in Section 2.4 of the Closing Date (excluding, however, the July Commissions) (i) the “Commissions”, and (ii) collectively, collectively the “Assumed Liabilities”) ). Buyer shall not assume, and (b) one or more members of the Seller Group, as applicable, shall assume and not be responsible for for: (i) all the Cure Costs necessary to cure any defaults that may exist under any of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained Assigned Contracts unless waived in writing by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the ClosingBuyer; (ii) any Liability of Seller obligations under any employment agreements or any obligations to any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters AgreementSeller’s employees; (iii) all Taxes for which Seller is responsible under Section 6.5(a)any other liabilities arising from, or otherwise relating to, the Sale Assets or the Northeast Business arising prior to the Closing; or (iv) except as otherwise expressly provided in this Agreement any other liabilities that are not Assumed Liabilities. Seller represents that it has not entered into any special discounting or offered promotional terms that may affect the Ancillary Documents, any liability for any fees or expenses incurred by Seller or obligations to customers under any of its Subsidiaries (including the fees Assigned Contracts. The parties hereby further acknowledge and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker agree that except for the obligations arising under the Assigned Contracts or consultant retained by Seller or its Subsidiaries or on their behalf) in connection otherwise with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than respect to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Sale Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of herein provided after the Closing Date, neither Buyer, nor any affiliate, officer, director, employee, shareholder or agent of Buyer shall assume, or be deemed to the extent relating toassume, any liabilities or obligations of Seller arising out of acts or resulting from any intercompany payables occurrences prior to be settled pursuant to Section 2.2, in each case whether incurred before, on or after the Closing, except or otherwise based on any event, facts or circumstances in existence prior to the sale of the Sale Assets or in connection with or arising from any activities of Seller. Pursuant to, and as otherwise expressly provided in Section 11.1 of this Agreement (collectivelyAgreement, the “Excluded Seller shall indemnify and hold Buyer harmless from and against any liabilities that are not Assumed Liabilities”).

Assumed and Excluded Liabilities. (a) The applicable Transferred Company At the Closing and except as otherwise provided in Section 2.3(c), Purchaser shall assume or retain and be responsibleagree to pay, from honor and after discharge when due the Closingfollowing liabilities (collectively, for the "Assumed Liabilities"): (i) all Assumed Contract Obligations relating to Assumed Contracts; (ii) all trade payables of Seller incurred in the ordinary course of the Liabilities conduct of the Division Business and listed by item and amount on Schedule 2.3(a)(ii) hereto; (iii) all current liabilities of Seller incurred in the ordinary course of the conduct of Division Business and listed by item and amount on Schedule 2.3(a)(iii) hereto; (iv) all obligations of Seller to provide its Subsidiaries customers who have purchased software with modifications to correct any problems with such software that have been published within the twelve (12) month period of the date of shipment of such software; and (v) all obligations of Seller with respect to any warranty claims for defective invoiced products pursuant to the Assumed Contracts. (b) Other than the Assumed Liabilities, Purchaser shall not assume, and the parties do not intend for Purchaser to assume, pursuant to this Agreement or otherwise, any liabilities or obligations of Seller, its shareholders or Affiliates of any kind or nature whatsoever, whether accrued, absolute, contingent or otherwise, known or unknown, including, without limitation, any of the Excluded Liabilities (as defined in Section 2.3(c) hereof). Seller shall faithfully pay, honor, perform and discharge as and when due all of the Excluded Liabilities. (c) Purchaser shall not assume and shall not be liable for any liabilities of Seller other than the Assumed Liabilities, and the Assumed Liabilities specifically exclude the following liabilities (the "Excluded Liabilities"): (i) any debts, liabilities or obligations, litigations, proceedings, claims and all other liabilities of any kind whatsoever, whether known or unknown, to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, not pertaining to the Division Business or any of the Transferred Companies’ use and occupancy of leased premises, Purchased Assets or (B) arising from existing orders or relating to the Division Business or the Purchased Assets on or prior to the Closing Date; (ii) any debts or liabilities of Seller (other than the trade payables set forth on Schedule 2.3(a)(ii) and the current liabilities set forth on Schedule 2.3(a)(iii)) including, without limitation, any amounts or agreements obligations due or arising under any financing documents or equipment financing arrangements, bank debt, accounts payable, indebtedness to Affiliates and any other debts or liabilities; (iii) the expenses of Seller referred to in Section 11.13 hereof; (iv) any obligations that arise under any guaranty or surety arrangement made by Seller or any of its shareholders; (A) any Taxes incurred or payable with respect to the State CommissionsDivision Business and the Purchased Assets on or prior to the Closing Date including, Video Franchisors and other regulatory authoritieswithout limitation, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed any taxes due pursuant to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (FB) arising out any liability of or related to any of the Transferred Real Property; and Seller for Taxes (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing including pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement); (A) any debts, including liabilities or obligations arising out of Seller's payroll obligations or Employee Benefit Plans, and (B) any accountantdebts, auditorliabilities or obligations arising out of the employment or termination of employment of any employees of Seller, brokerwhether or not arising from the transactions contemplated herein; (vii) any product liability or warranty claim, financial advisorother than as set forth in the Assumed Contracts, investment banker with respect to any products or consultant fees services sold by Seller in connection with the implementation conduct of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of Division Business on or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than prior to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date; and (viii) any debts, liabilities or obligations, known or unknown, contingent or liquidated or otherwise, pertaining to the extent relating to, arising out of or resulting from any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”)Assets.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company On the terms and subject -------------------------------- to the conditions set forth in this Agreement, at the Closing, Purchaser shall assume from Seller and its Subsidiaries and thereafter pay, perform, or retain and be responsibledischarge in accordance with their terms, all obligations that arise from and after the ClosingClosing under the Designated Contracts, in addition to the aggregate amount or other actions required to cure any defaults under the Designated Contracts (but in no event shall the Purchaser's obligation to cure each Designated Contract exceed the amount set forth on the Designated Contracts List for each such Designated Contract, whether or not the Bankruptcy Court ultimately determines a greater cure amount for a given Designated Contract). The Liabilities to be assumed pursuant to this Agreement shall be referred to herein as the "Assumed Liabilities" and all other Liabilities of Seller, its Subsidiaries and its Affiliates, including, without limitation, any and all rights, obligations or liabilities under or related to any and all Benefit Plans that are now or ever have been maintained or contributed to by Seller or any member of its Control Group (ias defined under Code Section 414(b), (c) all or (m)) or any item disclosed, or which should have been disclosed, pursuant to Section 3.11, shall be referred to herein as the "Excluded Liabilities". Purchaser shall not assume or pay, perform, succeed to, discharge, become subject to or be responsible for any of the Liabilities of Seller and or its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to Assumed Liabilities. Without limiting the extent relating generality of the foregoing, Purchaser shall not assume or pay, perform, succeed to, arising out of discharge, become subject to or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all any of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller Sellers or any of its Subsidiaries (including a) pursuant to any Contract that is not, or that is no longer deemed to be in accordance with the fees and expenses of legal counseloption specified in Section 1.2, a Designated Contract or (b) other than cure amounts constituting Assumed Liabilities, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating claims related to, associated with or arising out of the ownership, operation, use or resulting from any business currently control of the Acquired Assets existing on, or formerly conducted by Seller or any as a result of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Businessoperations of, the Transferred CompaniesAcquired Assets, the ownership before or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, to the extent relating to, arising out of or resulting from any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) The applicable Transferred Company Purchaser shall assume or retain and be responsibleassume, from and after the Closing, for (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, the obligations and liabilities of the Seller arising under the Purchased Contracts, but only to the extent relating tothat such obligations and liabilities arise after the Closing Date and relate to benefits to be received by the Purchaser after the Closing Date (the "Assumed Liabilities"). ------------------- (b) Except for the Assumed Liabilities, the Purchaser will not assume or perform any liabilities or obligations of the Seller. Except for the Assumed Liabilities, the Seller will absolutely and irrevocably retain and be solely responsible for any and all liabilities and obligations of any kind or nature, whether foreseen or unforeseen, known or unknown, existing or which may arise in the future, fixed or contingent, matured or unmatured of the Seller arising out of the Seller's ownership, use or resulting possession of the Acquired Assets, including the Seller's leasehold of the Premises under the Lease, or the Seller's conduct of the Wafer Operation, prior to the Closing Date, including the following (with all of the items in this Section 2.4(b) to be collectively -------------- the "Excluded Liabilities"): --------------------- (i) all of Seller 's accounts payable attributed to the period prior to the Closing Date; (ii) any liability to any employee of the Seller; (iii) any workers' compensation claims which relate to events before the Closing Date; (iv) any liability for product liability claims for products of the Wafer Operation manufactured before the Closing Date; (v) any liability for product warranty claims for products of the Wafer Operations manufactured before the Closing Date; (vi) any liability for Taxes (federal, foreign, state, local or otherwise) of the Seller for periods ending before the Closing Date (except for real property taxes for the Premises as set forth in Section 2.7); ----------- (vii) any liability incurred by, under or pursuant to any Environmental Laws or related to the discharge, handling, presence or clean-up of Hazardous Substances arising as a result of events occurring or facts or circumstances arising or existing before the Closing Date; (viii) any liability for inter-company obligations among the Wafer Operation, the Seller, MSI or any other affiliate of the Seller; (ix) all liabilities, costs or expenses incurred to remediate, clean up, dispose, excavate, remove, cap, contain or otherwise treat or monitor, to the extent required by any Environmental Laws, any Hazardous Substance which is or was at, on, under or emanating from the Premises prior to the Closing Date regardless of when such Hazardous Substance is discovered; (x) the cost to repair and make fully functional the equipment disclosed on Schedule 4.5(d) as damaged or needing repair, as well as --------------- the first $15,000 required to repair the Premises' roof in accordance with the work estimate of Just Leaks. (xi) any liability arising from any intercompany payables to be settled pursuant to Section 2.2Excluded Contract. (xii) any other liability, in each case whether incurred beforeobligation, on debt or after duty of the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”)Seller which is not an Assumed Liability.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company On the terms and subject to -------------------------------- the conditions set forth in this Agreement, at the Closing, Purchaser shall assume from Seller and its Subsidiaries and thereafter pay, perform, or retain and be responsibledischarge in accordance with their terms, all obligations that arise from and after the ClosingClosing under the Designated Contracts, in addition to the aggregate amount or other actions required to cure any defaults under the Designated Contracts (but in no event shall the Purchaser's obligation to cure each Designated Contract exceed the amount set forth on the Designated Contracts List for each such Designated Contract, whether or not the Bankruptcy Court ultimately determines a greater cure amount for a given Designated Contract). The Liabilities to be assumed pursuant to this Agreement shall be referred to herein as the "Assumed Liabilities" and all other Liabilities of Seller, its Subsidiaries and its Affiliates, including, without limitation, any and all rights, obligations or liabilities under or related to any and all Benefit Plans that are now or ever have been maintained or contributed to by Seller or any member of its Control Group (ias defined under Code Section 414(b), (c) all or (m)) or any item disclosed, or which should have been disclosed, pursuant to Section 3.11, shall be referred to herein as the "Excluded Liabilities". Purchaser shall not assume or pay, perform, succeed to, discharge, become subject to or be responsible for any of the Liabilities of Seller and or its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to Assumed Liabilities. Without limiting the extent relating generality of the foregoing, Purchaser shall not assume or pay, perform, succeed to, arising out of discharge, become subject to or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all any of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller Sellers or any of its Subsidiaries (including a) pursuant to any Contract that is not, or that is no longer deemed to be in accordance with the fees and expenses of legal counseloption specified in Section 1.2, a Designated Contract or (b) other than cure amounts constituting Assumed Liabilities, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating claims related to, associated with or arising out of the ownership, operation, use or resulting from any business currently control of the Acquired Assets existing on, or formerly conducted by Seller or any as a result of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Businessoperations of, the Transferred CompaniesAcquired Assets, the ownership before or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, to the extent relating to, arising out of or resulting from any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume Upon the terms and subject to the conditions of this Agreement, Purchaser hereby agrees to, or retain and be responsibleto cause one or more of its affiliates designated by Purchaser to, from and after assume, effective as of the Closing, for and agrees at all times thereafter to be responsible for, pay, perform and discharge when due only the following obligations and liabilities (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of whether contingent or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assetsotherwise) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for ): (i) all the liabilities (including accounts payable, bank overdrafts and other current liabilities) of the Liabilities of the Transferred Companies Business to the extent relating toreflected, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced amounts are expressly reserved therefor, in the Transferred Business beforeTarget Working Capital Statement, on or after as the Closing; same may be adjusted in the Final Working Capital Statement; (ii) any Liability all Intercompany Trade Payables to the extent reflected in Target Working Capital, as the same may be adjusted in the Final Working Capital Statement; (A) all obligations and liabilities of either Seller or any of its Subsidiaries affiliates arising out of, relating to their employees or otherwise in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, way in each case except respect of Contracts included in the Acquired Assets to the extent expressly such obligations or liabilities (1) arise out of events or conditions occurring on or after the Closing Date or arise out of the operation of the Business on or after the Closing Date or (2) are assumed by Buyer under pursuant to the Employee Matters Human Resources Agreement; , and (iiiB) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by performance obligations of either Seller or any of its Subsidiaries affiliates arising out of, relating to or otherwise in any respect of Contracts included in the Acquired Assets to the extent such performance obligations (1) arise out of events or conditions occurring on or after the Closing Date or arise out of the operation of the Business on or after the Closing Date, (2) arise, mature or become due on or after the Closing Date or (3) are reflected in Target Working Capital, as the same may be adjusted in the Final Working Capital Statement; (iv) all obligations and liabilities (whether or not arising from acts or omissions) of either Seller arising out of, relating to or otherwise in any way in respect of claims for personal injury, wrongful death or property damage resulting from exposure to, or any other warranty claims, refunds, rebates, property damage, product recalls, defective material claims, merchandise returns and/or any similar claims with respect to, Inventory acquired by Purchaser on the Closing Date, including the fees and expenses of legal counselproducts, any accountantor items purchased, auditorsold, brokerconsigned, financial advisormarketed, investment banker stored, delivered, distributed or consultant retained transported by Seller Purchaser or its Subsidiaries affiliates on or on their behalf) in connection with after the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; Date; (v) all obligations and liabilities arising out of, relating to or otherwise in any Liabilities way in respect of the Transferred Companies relating to, Real Property Leases to the extent such obligations or liabilities arise out of events or conditions occurring on or after the Closing Date or arise out of the operation of the Business on or after the Closing Date; (vi) all obligations and liabilities arising out of, relating to or otherwise in any way in respect of any Transferring Employee (as defined in the Human Resources Agreement) but only to the extent provided in the Human Resources Agreement; (vii) all obligations and liabilities arising out of, relating to or resulting from otherwise in any business currently way in respect of Taxes (other than as contemplated in Section 5.11 and other than Income Taxes described in Section 1.3(b)(ii)) attributable to the Business or formerly conducted by the Acquired Assets for all taxable periods commencing after the Closing Date including the portion after the Closing Date of any taxable period that includes, but does not end on, the Closing Date; (viii) all obligations and liabilities of either Seller arising out of, relating to or otherwise in any way in respect of Permits to the extent such obligations or liabilities arise out of events or conditions occurring on or after the Closing Date or arise out of the operation of the Business on or after the Closing Date; (ix) all obligations and liabilities identified on Schedule 1.3(a)(ix); and (x) all obligations and liabilities arising out of, relating to or otherwise in any respect of Permitted Liens to the extent such obligations or liabilities arise out of events or conditions occurring on or after the Closing Date or arise out the operation of the Business on or after the Closing Date. (b) Purchaser and its affiliates are not assuming and shall not be responsible or liable for, and Sellers shall retain and shall indemnify, defend and hold harmless Purchaser and its affiliates from, all obligations or liabilities (whether contingent or otherwise) of either Seller or any of its Subsidiaries (affiliates, other than to the extent Assumed Liabilities (all such Liabilities relate to, arise out of liabilities that are not being assumed by Purchaser or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, to the extent relating to, arising out of or resulting from any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement (collectivelyits affiliates, the “Excluded Liabilities”), including, but not limited to, the following obligations and liabilities: (i) all obligations and liabilities of either Seller or any of its affiliates to the extent arising out of, relating to or otherwise in any way in respect of the Excluded Assets (other than Intercompany Trade Payables); (ii) all obligations and liabilities of either Seller or any of its affiliates arising out of, relating to or otherwise in any way in respect of Income Taxes, including (A) Income Taxes of GP’s Federal consolidated Income Tax group (and any other Income Tax group under any Treasury Regulation under Section 1502 of the Code or any comparable provisions of foreign, state or local law), and (B) Income Taxes resulting from the sale and transfer from Sellers to Purchaser of the Acquired Assets but excluding any Transfer Taxes; (iii) all obligations and liabilities of either Seller, any of its affiliates or the Business arising out of, relating to or otherwise in any way in respect of any Intercompany Accounts; (iv) all obligations and liabilities of either Seller or any of its affiliates arising out of, relating to or otherwise in any way in respect of Contracts included in the Acquired Assets to the extent such obligations or liabilities arose prior to the Closing Date, except to the extent such obligations or liabilities are assumed by Purchaser pursuant to Section 1.3(a)(iii); (v) all obligations and liabilities of either Seller or any of its affiliates arising out of, relating to or otherwise in any way in respect of this Agreement, the Human Resources Agreement and any other Ancillary Document, or the agreements delivered or to be delivered by Sellers or their affiliates in connection with the transactions contemplated hereby; (vi) all obligations and liabilities (whether or not arising from acts or omissions) of either Seller or any of its affiliates arising out of, relating to or otherwise in any way in respect of any Product Liability Claims with respect to products purchased, sold, marketed, stored, delivered, distributed or transported by Sellers, their respective affiliates and/or the Business prior to the Closing Date, including, without limitation, claims, obligations or liabilities relating to the presence or alleged presence of ACM, formaldehyde-containing materials, other Hazardous Materials or CCA in any product or item purchased, sold, marketed, stored, delivered, distributed or transported by Sellers, their affiliates or the Business prior to the Closing Date; (vii) all Pre-Closing Environmental Liabilities arising out of or relating to the Business and/or the Acquired Assets including, but not limited to, Real Property currently or formerly owned or operated in connection with the Business, either Seller or any of its affiliates; and (viii) except as set forth in the Human Resources Agreement, all obligations and liabilities in respect of lawsuits, actions and proceedings arising out of, relating to or otherwise in any way in respect of the Business or the operation or use of the Acquired Assets prior to the Closing Date.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain On the terms and be responsiblesubject to the conditions set forth herein, from and after the Closing, for (i) all of the Liabilities of Seller Buyer will assume and its Subsidiaries to satisfy or perform when due the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including following Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”): (i) and (b) one or more members The accounts payable of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, Date to the extent such accounts payable were incurred in the ordinary course of business, consistent with past practice, and which are reflected in the Final Closing Date Balance Sheet; (ii) Any purchase money security interests or lease obligations relating toto the Acquired Assets and which are set forth on Schedule 2.3(a)(ii) and which are properly reflected on the Final Closing Date Balance Sheet; (iii) Accrued payroll for the Seller’s employees as of the Closing Date to the extent such accrued payroll as reflected in the Final Closing Date Balance Sheet as set forth on Schedule 2.3(a)(iii); (iv) With respect to any Transferred Employees, arising out responsibility for any accrued, but unpaid or unused, vacation leave, sick leave, holiday leave or other permitted leaves of or resulting from absence, provided the same have been properly accrued on the Interim Financials and the Final Closing Date Balance Sheet; and (v) All Liabilities relating to the Contracts of the Seller assigned to and assumed by the Buyer, of which the underlying event giving rise to the Liability arose subsequent to the Closing Date. (b) Except for the Assumed Liabilities, the Buyer does not and shall not assume and shall not be liable for any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after Liabilities of the Closing, except as otherwise expressly provided in this Agreement Seller (collectively, the “Excluded Liabilities”), including without limitation, the following: (i) Seller’s Debt except as otherwise expressly set forth in Section 2.3(a) above; (ii) Liabilities arising out of any events, acts or omissions of the Seller or the Members, or arising out of, relating to or resulting from the Seller’s ownership and use of the Acquired Assets or its conduct of the Business prior to Closing; (iii) Environmental Liabilities and Remediations arising out of events, acts or omissions of the Seller, the Members or any of their Affiliates, employees, servants or agents; (iv) Liabilities relating to claims or litigation involving or relating to the Business, the Seller and/or the Members for (1) any property damage claims and personal injury claims arising from the products sold or services provided by the Seller; (2) product liability, warranty or customer claims arising from products sold or services provided by the Seller; (3) any litigation described on Schedule 3.11 and (4) fraudulent or illegal acts of the Seller or the Members; (v) any intercompany indebtedness or payables existing on the Closing Date between the Seller and any of its Affiliates; (vi) Taxes attributable to the Acquired Assets or the operation of the Business for periods prior to Closing; (vii) Liabilities with respect to any Seller Plan, Multiemployer Plan or ERISA Affiliate Plan (including, for this purpose, any Employee Benefit Plan to which the Seller or an ERISA Affiliate previously contributed to or maintained), including, without limitation, the Profits Interest Bonus Plan; (viii) Fees of attorneys and accountants relating to the transactions the subject of this Agreement, whether billed or unbilled; and (ix) Without limiting the generality of the foregoing, all other Liabilities, contracts, commitments, costs or expenses or other obligations of the Seller or the Members of any nature whatsoever, known or unknown, liquidated or unliquidated, accrued, absolute, contingent or otherwise whether or not related to the Acquired Assets or the operation of Business, including, without limitation, Permitted Encumbrances, except only for the Assumed Liabilities. The Seller, the Members and the Buyer expressly agree that the Seller shall remain fully liable for the satisfaction and payment of the Excluded Liabilities, whether or not specifically referenced in this Section 2.3(b), and that the Buyer shall have no obligation with respect thereto. Without in any manner limiting the generality of the foregoing, the Buyer does not assume, and shall not be or become liable for any obligations of the Seller or the Members, excepting only the Assumed Liabilities. The Seller and the Members shall take all necessary action to insure that any and all Excluded Liabilities are paid and discharged by the Seller in a prompt and timely fashion.

Assumed and Excluded Liabilities. On the Closing Date, Buyer shall execute and deliver to Sellers the Xxxx of Sale, Assignment and Assumption Agreement pursuant to which Buyer shall assume and agree to pay, perform and discharge when due, all the liabilities and obligations of Sellers arising out of the business of the Brownsville Business, of any kind or nature, whether absolute, contingent, accrued or otherwise, and whether arising before or after the Closing including, without limitation, all liabilities (i) for tax items assumed by Buyer under Section 2.7, (ii) in respect of any threatened litigation referred to on Schedule 4.6, (iii) under the Assigned Contracts, (iv) all liabilities and obligations of Buyer set forth in Article IX hereof and (v) all liabilities in respect of roof repairs required by the landlord at the Brownsville Facility, but not to exceed the lesser of $48,000 or one-half of the final cost of such repairs to the Main Building of the Brownsville Facility (collectively, the "Assumed Liabilities"), it being acknowledged that the contracts of Coil Company and Glasmex need not be expressly assumed because the contracts of Glasmex are being assumed by Coil Company and the stock of Coil Company is being acquired (and/or, the stock of Glasmex is subsequently acquired pursuant to Section 3.3); PROVIDED, HOWEVER, that the Assumed Liabilities shall in no event include the following liabilities (the "Excluded Liabilities"): (a) The applicable Transferred Company shall assume any liability, responsibility or retain obligation with respect to any Seller Plan, except (i) as provided in Article IX and be responsible, from and after the Closing, (ii) pursuant to any Assigned Contracts; (b) any liability for (i) all warranty claims (other than warranty claims under the Alcan Agreement or those covered by the Special Reserve, none of which shall reduce the Liabilities reserve on the Closing Balance Sheet or otherwise give rise to any liability of Seller either Seller) made after the Closing for service, repair, replacement and its Subsidiaries similar work required under Sellers' written warranties with respect to the extent relating to, arising out of products sold or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after services provided prior to the Closing, including the Liabilities expenses of which, at shop level cost (direct materials, direct labor and factory overhead) in the Transferred Companies under this Agreement and aggregate exceed the Ancillary Documents warranty reserve on the Closing Balance Sheet, (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreementii) including Liabilities (workers' compensation claims with respect to injuries prior to the extent relating toClosing, arising out (iii) claims under health insurance plans of or resulting from Sellers for covered Business Employees with respect to services rendered prior to the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) Closing (A) but not in respect of leased vehicles, equipment leases, Transferred Real Property Leases, any sick leave or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related disability benefits pertaining to any period after the Closing Date regardless of when the Transferred Real Property; and relevant illness or condition arose) or (iiiv) all Liabilities in respect of the Assigned Contracts any product liability claims for injuries, property damage or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating toother Losses, arising out of with respect to products sold or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant services provided prior to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this but only if written notice of such claims described in clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business beforeii), on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); or (iv) except as otherwise expressly provided in this Agreement or shall have been delivered to MagneTek within the Ancillary Documents, two-year period following the Closing Date; (c) any liability for Taxes for any fees period ending on or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than prior to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, excluding the tax items covered by Section 2.7; and (d) any liability in connection with any litigation pertaining to the extent relating to, arising out of or resulting from any intercompany payables Brownsville Business as to be settled pursuant which a complaint has been filed prior to Section 2.2, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”)Closing Date.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume Upon the terms and subject to the conditions of this Agreement, Purchaser hereby agrees to, or retain and be responsibleto cause one or more of its affiliates designated by Purchaser to, from and after assume, effective as of the Closing, for and agrees at all times thereafter to be responsible for, pay, perform and discharge when due only the following obligations and liabilities (i) all of the Liabilities of Seller and its Subsidiaries whether contingent or otherwise), to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for ): (i) all of the Liabilities of the Transferred Companies to the extent relating to, obligations and liabilities arising out of, relating to or otherwise in any way in respect of owning, occupying or resulting operating the Owned Real Property (including, without limitation, those arising from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary DocumentPermits, whether incurred beforeLeases and Permitted Liens in respect thereof), on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, obligations or liabilities arise out of obligations that first commence, or result from the Transferred Businessevents or conditions that first occur, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of after the Closing Date; (ii) all obligations and liabilities arising out of, relating to or otherwise in any way in respect of Taxes (other than as contemplated in Section 5.11) attributable to the extent relating toOwned Real Property for all taxable periods beginning after the Closing Date including the portion of any taxable period after the Closing Date that includes, but does not end on, the Closing Date; and (iii) All Transfer Taxes arising out by reason of or resulting from any intercompany payables to be settled the transactions consummated pursuant to Section 2.2this Agreement, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement Section 5.11(b), other than as contemplated under Section 5.11(h). (collectivelyb) Purchaser is not assuming and shall not be responsible or liable for, and Seller shall retain, and shall indemnify, defend and hold harmless Purchaser from, all obligations or liabilities (whether contingent or otherwise) not expressly included in the definition of Assumed Liabilities (all such liabilities that are not being assumed by Purchaser, the “Excluded Liabilities”). (c) Notwithstanding anything to the contrary contained herein, but subject to the provisions of Section 5.4, this Agreement shall not operate to assign, or otherwise transfer, any Real Property or any claim, right or benefit arising thereunder or resulting therefrom if an attempted assignment or other transfer thereof, without the consent of any Governmental Entity or any other Person (which consent is not actually obtained on or prior to the Closing Date), would constitute a breach, default or other contravention of any Lease, Permitted Lien or Permit or a violation of applicable Law. Seller and Purchaser shall each use reasonable efforts to obtain the consent of such Persons for the assignment thereof to Purchaser or its affiliates prior to the Closing (it being understood that the failure to obtain such consents shall not relieve any party from its obligation to consummate at the Closing the transactions contemplated by this Agreement) and shall otherwise comply with the provisions of Section 5.4. (d) If between the date of this Agreement and the Closing, (i) any loss or damage to any Real Property shall occur from fire, casualty or any other occurrence, (ii) Seller does not at its discretion replace or restore such Real Property prior to the Closing Date and (iii) the Closing occurs, then all insurance proceeds received by Seller (whether before or after Closing) as a result of such loss or damage plus any additional sums necessary to replace any such Real Property will be delivered by Sellers to Purchaser. For the avoidance of doubt, Seller shall not otherwise have any obligation to replace or restore any such Real Property if such monies are assigned and delivered to Purchaser. Seller shall have the sole right and authority to provide notices and claims to the applicable insurance carrier and otherwise to communicate and negotiate with such carrier, but shall use its commercially reasonable efforts to obtain any such proceeds payable to Seller. Notwithstanding the foregoing, the benefit of any insurance proceeds in relation to “business interruption” damages based upon lost profits or business opportunities in respect of the period prior to the Closing Date, and insurance proceeds in relation to such loss or damage to the extent attributable to any such Real Property replaced or restored before the Closing Date or otherwise used for such purposes, will inure to the benefit of and be payable to Seller, as applicable, and Purchaser will not be entitled to receive or retain such proceeds.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain On the terms and be responsiblesubject to the conditions set forth in this Agreement, from and after at the Closing, for and subject to consummation of the Closing, Purchaser 1 shall (or shall cause its designated Affiliate or Affiliates to) assume, effective as of the Closing, the following liabilities of Seller and its Subsidiaries (collectively, the “P1 Assumed Liabilities”): (i) all Liabilities arising out of, under or in connection with any Assumed Returns in connection with the P1 Transferred Assets; and (ii) accounts payable (other than intercompany accounts payable) associated with Inventory on order by or in transit to Seller or its Subsidiaries as of the Closing (in amounts and on terms in the Ordinary Course of Business) which is received after the Closing; provided, however, that such accounts payable shall exclude any accounts payable associated with any Inventory included in the Inventory Amount in accordance with Section 2.6. (b) On the terms and subject to the conditions set forth in this Agreement, at the Closing, and subject to consummation of the Closing, Purchaser 2 shall (or shall cause its designated Affiliate or Affiliates to) assume, effective as of the Closing, all Liabilities of Seller and the Subsidiaries arising out of, under or in connection with Assumed Returns in connection with the P2 Transferred Assets ( the “P2 Assumed Liabilities”). (c) Notwithstanding anything herein to the contrary, and regardless of any disclosure to any Purchaser, no Purchaser will assume or be liable for any Excluded Liabilities. Seller shall, and shall cause its Subsidiaries to, timely perform, satisfy and discharge in accordance with their respective terms all Excluded Liabilities. “Excluded Liabilities” shall mean all Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of of, relating to or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts Sale Business or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets on or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of before the Closing Dateand all other Liabilities of Seller and its Subsidiaries, to other than the extent relating toAssumed Liabilities, arising out of or resulting from any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after including the Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded following Liabilities”).:

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain On the terms and be responsiblesubject to the conditions set forth herein, from and after the Closing, for the Buyer will assume and satisfy or perform when due the following liabilities (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”): (i) and (b) one or more members The accounts payable of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, Date to the extent such accounts payable were incurred in the ordinary course of business, consistent with past practice, and which are reflected in the Estimated Closing Date Balance Sheet; (ii) Any purchase money security interests, lease obligations and Permitted Encumbrances relating toto the Acquired Assets and which are set forth on Schedule 2.3(a)(ii) and which are properly reflected on the Estimated Closing Date Balance Sheet; (iii) Accrued payroll for the Seller’s employees and contractors as of the Closing Date to the extent such accrued payroll is reflected in the Estimated Closing Date Balance Sheet as set forth on Schedule 2.3(a)(iii); (iv) With respect to any Transferred Employees, arising out responsibility for any accrued, but unpaid or unused, vacation leave, sick leave, holiday leave or other permitted leaves of or resulting from absence, provided the same have been properly accrued on the Interim Financials and the Estimated Closing Date Balance Sheet; and (v) All Liabilities relating to the Contracts of the Seller assigned to and assumed by the Buyer, of which the underlying event giving rise to the Liability arose subsequent to the Closing Date. (b) Except for the Assumed Liabilities, the Buyer does not and shall not assume and shall not be liable for any intercompany payables to be settled pursuant to Section 2.2, in each case whether incurred before, on or after Liabilities of the Closing, except as otherwise expressly provided in this Agreement Seller (collectively, the “Excluded Liabilities”), including without limitation, the following: (i) Liabilities arising out of any events, acts or omissions of the Seller or the Stockholders, or arising out of, relating to or resulting from the Seller’s ownership and use of the Acquired Assets or its conduct of the Business; (ii) Environmental Liabilities and Remediations arising out of events, acts or omissions of the Seller, the Stockholders or any of their Affiliates, employees, servants or agents; (iii) Liabilities relating to claims or litigation involving or relating to the Business, the Seller and/or the Stockholders for (1) any property damage claims and personal injury claims arising from the products sold or services provided by the Seller; (2) product liability, warranty or customer claims arising from products sold or services provided by the Seller; (3) any litigation described on Schedule 3.11 and (4) fraudulent or illegal acts of the Seller or the Stockholders; (iv) any intercompany indebtedness or payables existing on the Closing Date between the Seller and any of its Affiliates; (v) Taxes attributable to the Acquired Assets or the operation of the Business for periods prior to Closing; (vi) Liabilities with respect to any Company Plan, Multiemployer Plan or ERISA Affiliate Plan (including, for this purpose, any Employee Benefit Plan to which the Seller or an ERISA Affiliate previously contributed to or maintained); (vii) Fees of attorneys and accountants relating to the transactions the subject of this Agreement, whether billed or unbilled, including transactions relating to the acquisition of shares of the Subsidiary by the Seller; and (viii) Without limiting the generality of the foregoing, all other liabilities, contracts, commitments, costs or expenses or other obligations of the Seller or the Stockholders of any nature whatsoever, known or unknown, liquidated or unliquidated, accrued, absolute, contingent or otherwise whether or not related to the Acquired Assets or the operation of Business, including, without limitation, Permitted Encumbrances, except only for the Assumed Liabilities. The Seller, the Stockholders and the Buyer expressly agree that the Seller shall remain fully liable for the satisfaction and payment of the Excluded Liabilities, whether or not specifically referenced in this Section 2.3(b), and that the Buyer shall have no obligation with respect thereto. Without in any manner limiting the generality of the foregoing, the Buyer does not assume, and shall not be or become liable for any obligations of the Seller or the Stockholders, excepting only the Assumed Liabilities. The Seller and the Stockholders shall take all necessary action to insure that any and all Excluded Liabilities are paid and discharged by the Seller in a prompt and timely fashion.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain On the terms and be responsiblesubject to the conditions set forth herein, from and after the Closing, for the Buyer will assume and satisfy or perform when due (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”): (i) The accrued payroll, accrued bonuses, accrued rent expense and (b) one or more members accounts payable of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, Date to the extent relating toall such amounts were incurred in the ordinary course of business, arising out of consistent with past practice, which are reflected in the Estimated Closing Date Balance Sheet, and which shall be accepted by Buyer in writing at the Closing; (ii) Any accruals or resulting from any intercompany payables to be settled accounts payable not included in the Preliminary Closing Date Balance Sheet that result in a post-Closing Purchase Price adjustment pursuant to Section 2.22.4 below and which accrual or accounts payable are included in the Final Closing Date Balance Sheet; (iii) Any purchase money security interests or lease obligations relating to the fixed assets of Seller acquired by Buyer and which are set forth on Schedule 2.3(a)(iii). (b) Except for the Assumed Liabilities, in each case whether incurred before, on or after the Closing, except as otherwise expressly provided in this Agreement Buyer does not and shall not assume and shall not be liable for any Liabilities of the Seller and/or the Member (collectively, the “Excluded Liabilities”), including without limitation, the following: (i) Liabilities arising out of any events, acts or omissions of the Seller or the Member, or arising out of, relating to or resulting from the Seller’s ownership and use of the Acquired Assets or its conduct of the Business; (ii) Environmental Liabilities and Remediations arising out of events, acts or omissions of the Seller, the Member or any of their Affiliates, employees, servants or agents; (iii) Liabilities relating to claims or litigation involving or relating to the Seller and/or the Member for (1) any property damage claims and personal injury claims arising from the products sold or services provided by the Seller; (2) product liability, warranty or customer claims arising from products sold or services provided by the Seller; and (3) the litigation described on Schedule 3.11; (iv) any intercompany indebtedness or payables existing on the Closing Date between the Seller and any of its Affiliates; (v) Taxes attributable to Seller or its operation of the Business; (vi) any Liabilities of the Seller arising under or relating to the Key Employee Retention Plans; (vii) Liabilities with respect to any Company Plan (as defined in Section 3.15), Multiemployer Plan or ERISA Affiliate Plan (including, for this purpose, any Employee Benefit Plan to which the Seller or an ERISA Affiliate previously contributed to or maintained); and (viii) Without limiting the generality of the foregoing, all other liabilities, contracts, commitments, costs or expenses or other obligations of Seller or the Member of any nature whatsoever, known or unknown, liquidated or unliquidated, accrued, absolute, contingent or otherwise whether or not related to the Acquired Assets or the operation of Business, except only for the Assumed Liabilities. Seller, Member and Buyer expressly agree that Seller and the Member shall remain fully (jointly and severally) liable for the satisfaction and payment of the Excluded Liabilities, whether or not specifically referenced in this Section 2.3(b), and that Buyer shall have no obligation with respect thereto. Without in any manner limiting the generality of the foregoing, Buyer does not assume, and shall not be or become liable for any obligations of the Seller or the Member, excepting only for the Assumed Liabilities. Seller and the Member shall take all necessary action to insure that any and all Excluded Liabilities are paid and discharged by Seller and the Member in a prompt and timely fashion.

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain On the terms and be responsiblesubject to the conditions set forth in this Agreement, from and after at the Closing, for (i) all of Purchaser shall assume from Seller only the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including following Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for ): (i) all Liabilities under the Assumed Contracts, including without limitation royalty obligations arising from sales of Products, to the extent arising out of or relating to events or conditions, occurring after the Closing; (ii) all Liabilities of with respect to the Transferred Companies Conveyed Assets to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used operation or practiced in the Transferred Business before, on or conduct of Purchaser’s business from and after the Closing; and (iii) all Liabilities of Seller arising out of user or other similar fees payable to the FDA or other Governmental Entity to the extent that such fees are due and payable with respect to the Products after the Closing. (b) Regardless of any disclosure to Purchaser, Purchaser shall not assume any Liabilities from Seller other than the Assumed Liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Purchaser shall not assume any of the following Liabilities, all of which shall be retained by Seller: (i) any Liability of Seller or any Affiliate of Seller (including any Liability to the extent resulting from the ownership, use, operation, maintenance or sale of the Conveyed Assets by or on behalf of Seller prior to the Closing) not described in Section 2.2(a); (ii) any Liability of Seller (A) arising out of any actual or alleged breach by Seller of, or nonperformance by Seller under, any of its Subsidiaries contract (including any Assumed Contract) prior to their employees in their capacity as employers the Closing, or (B) accruing under any employee benefits Assumed Contract with respect to any period prior to the Closing; (iii) any Liability of Seller related to any product of Seller (other than the Products) or similar plans, the operation or under conduct by Seller of any workers compensation Laws or arrangements, in each case except business (other than the development of the Products prior to the Closing); (iv) any Liability of Seller to the extent expressly assumed by Buyer under arising out of (A) any suit, Action or proceeding pending or threatened as of the Employee Matters Agreement; Closing or (iiiB) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement any actual or the Ancillary Documents, any liability for any fees or expenses incurred alleged violation by Seller or any of its Subsidiaries (including the fees and expenses Affiliates of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Law applicable to Seller or any of its Subsidiaries Affiliates; (other than v) any account payable of Seller, including any retainages or similar amounts relating to work performed in connection with the Products that is sold by or on behalf of Seller prior to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and Closing; (vi) all Liabilities existing as any Liability of the Closing Date, Seller that relates to the extent relating to, any Excluded Asset; (vii) any Liability under Environmental Laws arising out of or resulting from any intercompany payables relating to be settled pursuant to Section 2.2the operation or conduct of Seller’s business or the use or ownership of the Conveyed Assets, in each case whether incurred beforecase, on before the Closing; (viii) any Liability that relates to any employee, any former employee of Seller or any individual who applied for employment with Seller in connection with his or her hiring, non-hiring termination or employment by Seller on, prior to or after the Closing, except as otherwise expressly provided including any such Liability relating to wages, severance payments, bonuses, medical and workers’ compensation claims, vacation pay, any other employee benefit plans or arrangements or payroll practices; (ix) any Liability of Seller to any of its Affiliates; and (x) any Liability in this Agreement respect of Taxes that are to be borne by Seller pursuant to Section 6.4, any Liability in respect of Taxes levied with respect to the Conveyed Assets attributable to Pre-Closing Tax Periods, and any other Taxes of Seller or its Affiliates for any periods; and any Liability in respect of deferred Taxes (collectively, the “Excluded Liabilities”from an accounting perspective).

Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain On the terms and be responsiblesubject to the conditions set forth herein, from and after the Closing, for the Buyer will assume and satisfy or perform when due (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance xxxxxxxx and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”): (i) and (b) one or more members The accounts payable of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Laws or arrangements, in each case except to the extent expressly assumed by Buyer under the Employee Matters Agreement; (iii) all Taxes for which Seller is responsible under Section 6.5(a); (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor, investment banker or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Ancillary Documents or the consummation of the transactions contemplated by this Agreement, including any accountant, auditor, broker, financial advisor, investment banker or consultant fees in connection with the implementation of the Pre-Closing Reorganization; (v) any Liabilities of the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Subsidiaries (other than to the extent such Liabilities relate to, arise out of or result from the Transferred Business, the Transferred Companies, the ownership or operation of the Transferred Assets or the Transferred Companies’ historic wireline business conducted within the States) and (vi) all Liabilities existing as of the Closing Date, Date to the extent relating tosuch accounts payable were incurred in the ordinary course of business, arising out of or resulting from any intercompany payables to consistent with past practice, and which shall be settled pursuant to Section 2.2, accepted by Buyer in each case whether incurred before, on or after writing at the Closing; (ii) Any purchase money security interests or lease obligations relating to the fixed assets of Seller acquired by Buyer and which are set forth on Schedule 2.3(a)(ii); (b) Except for the Assumed Liabilities, except as otherwise expressly provided in this Agreement the Buyer does not and shall not assume and shall not be liable for any Liabilities of the Seller and/or the Stockholders (collectively, the “Excluded Liabilities”), including without limitation, the following: (i) Liabilities arising out of any events, acts or omissions of the Seller or the Stockholders, or arising out of, relating to or resulting from the Seller’s ownership and use of the Acquired Assets or its conduct of the Business prior to the Closing; (ii) Environmental Liabilities and Remediations arising out of events, acts or omissions of the Seller, the Stockholders or any of their Affiliates, employees, servants or agents; (iii) Liabilities relating to claims or litigation involving or relating to the Seller and/or the Stockholders for (1) any property damage claims and personal injury claims arising from the products sold or services provided by the Seller; (2) product liability, warranty or customer claims arising from products sold or services provided by the Seller; and (3) the litigation described on Schedule 3.11; (iv) any inter-company indebtedness or payables existing on the Closing Date between the Seller and any of its Affiliates; (v) Taxes attributable to Seller or its operation of the Business; (vi) Liabilities with respect to any Company Plan (as defined in Section 3.15), Multiemployer Plan or ERISA Affiliate Plan (including, for this purpose, any Employee Benefit Plan to which the Seller or an ERISA Affiliate previously contributed to or maintained); (vii) Any liability deriving from a preference action or other similar bankruptcy action relating to a bankruptcy petition filed by RailWorks Corporation; (viii) Without limiting the generality of the foregoing, all other liabilities, contracts, commitments, costs or expenses or other obligations of Seller or the Stockholders of any nature whatsoever, known or unknown, liquidated or unliquidated, accrued, absolute, contingent or otherwise whether or not related to the Acquired Assets or the operation of Business, including, without limitation, liabilities incurred in connection with any home offices used by the Stockholders or any employee of Seller prior to the Closing, except only for the Assumed Liabilities. Seller, Stockholders and Buyer expressly agree that Seller and the Stockholders shall remain fully (jointly and severally) liable for the satisfaction and payment of the Excluded Liabilities, whether or not specifically referenced in this Section 2.3(b), and that Buyer shall have no obligation with respect thereto. Without in any manner limiting the generality of the foregoing, Buyer does not assume, and shall not be or become liable for any obligations of the Seller or the Stockholders, excepting only for the Assumed Liabilities. Stockholders will cause Seller to take all necessary action to insure that any and all Excluded Liabilities are paid and discharged by Seller in a prompt and timely fashion, or validly dispute any such Excluded Liability in a manner so as not to cause liability against Buyer.