Common use of Assumed and Excluded Liabilities Clause in Contracts

Assumed and Excluded Liabilities. (a) Subject to the terms and conditions set forth herein, at the Transfer Time, BioMarin shall assume and agree to pay, perform and discharge the following Liabilities, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”): (i) all Liabilities arising out of or relating to claims (including product liability claims) for injury to person or property that resulted from the use or misuse of the Products sold or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trial; (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities; (iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and (v) all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder (i) relate to the Products, (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise on or after the Transfer Time. (b) Notwithstanding any provision of this Agreement or the License Agreement to the contrary, neither BioMarin nor any of its Affiliates shall assume any Liabilities of Merck Serono or any of its Affiliates other than the Assumed Liabilities, and all such other Liabilities shall remain the sole obligation and responsibility of Merck Serono and its Affiliates (the “Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) Subject As of and after the Closing, and subject to consummation of the terms and conditions set forth hereinClosing, at the Transfer TimePurchaser shall assume, BioMarin shall assume and agree to pay, discharge and perform and discharge the following Liabilities, except for the Excluded obligations and Liabilities (collectively, the “Assumed Liabilities”): ): (i) all Liabilities arising out of or relating to claims associated with the Patent Lawsuit (including product liability claims) for injury to person or property that resulted from attorneys’ fees and the use or misuse other costs of defending the Products sold or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trial; (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities; (iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and (v) all Liabilities in respect of the Assigned Contracts Patent Lawsuit but only to the extent that such Liabilities thereunder (i) relate to attorney’s fees and costs arise or are incurred following the Products, Closing); (ii) do not relate to any failure to perform, the obligations and Liabilities under or other breach, default or violation by Merck Serono prior with respect to the Transfer Time Assigned Contracts and other Transferred Assets transferred to Purchaser at the Closing to be paid, discharged and performed after the Closing Date and which are, but only to the extent they are, attributable to the period after the Closing Date, provided that Purchaser shall not be responsible for any Liability of Seller or its Affiliates for Taxes (whether attributable to the period before or after the Closing Date) except as expressly provided in Sections 2.8, 2.9 and 2.12; (iii) arise on obligations and Liabilities relating to the Transferred Assets in respect of which Purchaser received a credit to the Cash Consideration pursuant to Section 2.4 or after the Transfer Time2.8; and (iv) obligations and Liabilities relating to COBRA Coverage pursuant to Section 7.6 or assumed pursuant to Section 7.10, if any. (b) Notwithstanding anything herein or in any provision of this Agreement or the License Agreement other Transaction Document to the contrary, neither BioMarin nor and regardless of any disclosure to Purchaser, except for the Assumed Liabilities specifically set forth in Section 2.3(a) above, Purchaser shall not assume or have any responsibility for any obligation or Liability of its Seller or the Canadian Subsidiary or their Affiliates shall assume that is not an Assumed Liability, including, but not limited to, any obligations or Liabilities relating to (i) the Excluded Leases, (ii) the Retained Litigation, (iii) any Contract that is not an Assigned Contract, (iv) any Employee Benefit Plans (other than obligations and Liabilities relating to COBRA Coverage pursuant to Section 7.6 or assumed pursuant to Section 7.10, if any), (v) any other Excluded Asset, (vi) the conduct or operation of Merck Serono or the Non-North America Business and any other businesses of Seller and its Affiliates other than the Assumed LiabilitiesNorth America Business, or (vii) the conduct or operation of the North America Business or the ownership of the Transferred Assets during the period prior to the close of business on the Closing Date (except for the obligations and all such other Liabilities shall remain the sole obligation assumed pursuant to Section 2.3(a)(i) and responsibility of Merck Serono and its Affiliates (iii)) (collectively, the “Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) Subject to the terms and conditions set forth herein, at the Transfer Time, BioMarin The applicable Transferred Company shall assume and agree to paybe responsible, perform from and discharge after the following LiabilitiesClosing, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”): (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or relating to claims (including product liability claims) for injury to person or property that resulted resulting from the use Transferred Companies or misuse the ownership or operation of the Products sold or used Transferred Assets, whether incurred before, on or after the Transfer TimeClosing, including other than the use or misuse of the Products Excluded Liabilities and except as otherwise expressly provided in connection with any clinical trial; this Agreement, (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities; (iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and (v) all Liabilities in respect of the Assigned Contracts but only to the extent that such and (iii) all Liabilities thereunder set forth on Annex 2.3(a) ((i) relate to the Products), (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise collectively, the “Assumed Liabilities”) and (b) one or more members of 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, whether incurred before, on or after the Transfer Time. Closing, (bii) Notwithstanding any provision Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, except to the extent expressly assumed by Buyer under Section 6.6, (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 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 License Agreement to Ancillary Documents or the contraryconsummation of the transactions contemplated by this Agreement, neither BioMarin nor any of its Affiliates shall assume (v) any Liabilities of Merck Serono the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Affiliates Subsidiaries (other than Liabilities relating to, arising out of or resulting from (x) the Assumed Liabilitiesprovision of ILEC Services as conducted on the date of this Agreement or as of the Closing, (y) any similar business conducted by the Transferred Companies prior to the date of this Agreement that would constitute an ILEC Service but for the date restrictions contained in the definition thereof or (z) the Transferred Companies’ historic wireline business conducted within the Territory), and (vi) all such other Liabilities shall remain set forth on Annex 2.3(b), whether incurred before, on or after the sole obligation and responsibility of Merck Serono and its Affiliates Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”). For the avoidance of doubt, the Excluded Liabilities (other than clause (v) of the definition thereof) are not intended to create and expressly exclude any obligation of any member of the Seller Group to assume or be responsible for any Liability related to the infringement, misappropriation or other violation of any Intellectual Property rights.

Assumed and Excluded Liabilities. (a) Subject to the terms and conditions set forth herein, at the Transfer Time, BioMarin shall assume and agree to pay, perform and discharge the following Liabilities, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”): (i) all Liabilities arising out of or relating to claims (including product liability claims) for injury to person or property that resulted from the use or misuse of the Products sold Products, whether prior to or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trial; (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities;; and (iviii) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b4.01(b); and (v) all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder (i) relate to the Products, (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise on or after the Transfer Time. (b) Notwithstanding any provision of this Agreement or the License Agreement to the contrary, neither BioMarin nor any of its Affiliates shall assume any Liabilities of Merck Serono or any of its Affiliates other than the Assumed Liabilities, and all such other Liabilities shall remain the sole obligation and responsibility of Merck Serono and its Affiliates (the “Merck Serono Excluded Liabilities”).