Common use of Assumed Liabilities Clause in Contracts

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date; (ii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxes)Seller's obligations to Subscribers under such Contracts for (A) Subscriber deposits held by Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (bB) Taxes payable Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer resulting from payments made receives a credit pursuant to this Agreement, (cSection 1.6(a) one-half of the Transfer Taxes, if applicablebelow, and (dC) Taxes the delivery of Buyer Internet connectivity service to Subscribers (whether pursuant to a Contract or any other Person, relating to the Focus Factor Business on and otherwise) after the Closing Date; and (iii) the Current Liabilities (as hereinafter defined) of Seller ((i), whether pursuant to an agreement(ii) and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by operation law Buyer hereunder shall not enlarge any rights of third parties under contracts or transferee arrangements with Buyer or successor liability, Seller or otherwiseany of their respective affiliates or subsidiaries. No parties other than Buyer and Seller shall retain, and Buyer shall not assume, have any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesrights under this Agreement.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in For purposes of this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for “Assumed Liabilities” means only the following obligations and liabilities Liabilities of the Seller: (i) Liabilities first arising after the accounts payable Closing Date that relate solely to the operation of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), Business by Purchaser; (ii) the all obligations and liabilities of the Seller under the Assigned Contracts incurred first arising after the Closing Date (and under Contracts specifically excluding any obligations or liabilities under and breaches thereof arising prior described in Section 2.1(c) to the Closing Date) which extent such obligations and liabilities being assumed do not arise from or relate to any act or omission by Seller under any of such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and Contracts; (iii) an amount equal to the Liabilities set forth on Schedule 5.8 accrued payroll and vacation liabilities (which Purchaser may fund or, in the “Assumed Liabilities”); providedcase of vacation liabilities, howeverelect to assume in the form of vacation time credit under its policies, the Assumed Liabilities at its sole election) for Transferred Employees as of Closing, such amount shall not include any obligations or liabilities that were not incurred exceed $1,500,000 in the ordinary course of business. Assumed Liabilities shall include aggregate under any liabilities circumstances; (iv) employee benefits for (a) Taxes relating to or Transferred Employees arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether in form and amount consistent with those provided by Purchaser to its employees; and (v) an amount equal to the value of accrued liabilities related to customer credits and other amounts due to customers of Seller. The accrued Liabilities described in Section 2.2(c)(iii) and (v) are herein referred to as the “Assumed Accrued Liabilities.” Notwithstanding anything to the contrary contained in this Agreement, payments of amounts due pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, Section 2.2(c)(iii) (up to the $1,500,000 cap) and Buyer (v) shall not assume, any constitute an assumption of the obligations and liabilities underlying or related to such amounts unless Purchaser expressly elects to assume vacation time credits in writing and then solely to the extent of the hours of credit it elects to assume whether or not sufficient to extinguish the liability of Seller, direct Seller to such employee. No Transferred Employee shall have any claim against Purchaser pursuant to this Section 2.2(c) or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesotherwise under this Agreement except pursuant to a written offer of employment delivered directly by Purchaser to such individual Transferred Employee.

Assumed Liabilities. Upon On the terms and subject to the conditions set forth herein, Purchaser hereby agrees, effective as of the Closing, to assume and thereafter to pay, discharge, perform and otherwise satisfy when due, in this Agreementaccordance with their respective terms, (i) all Liabilities arising from and after the Closing with respect to the Transferred Assets or the operation of the Business by Purchaser from and after the Closing, (ii) all Liabilities of Seller with respect to each Assumed Contract arising with respect to the Buyer will assume and pay, perform, discharge and be responsible for period commencing on the following obligations and liabilities date of the Seller: (i) the accounts payable assignment of Seller set forth such Assumed Contract pursuant to this Agreement, other than, as provided in Section 2.1(e), any Cure Amounts listed on Schedule 2.4(i) (the “Accounts Payable”2.1(e)(ii), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the all Customer Program Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed , (iv) subject to Section 2.1(d) and Article VIII, all Liabilities shall include any liabilities with respect to Hired Employees arising after the Closing, (v) all Liabilities for ad valorem (aor similar) property Taxes relating to (whether assessed or arising out unassessed) in respect of the Focus Factor Business accruing Transferred Assets for any taxable period (or portion thereof) beginning on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreementand (vi) Purchaser’s share of Transfer Taxes as set forth in Section 7.12(e), by operation law or transferee or successor liability(collectively, or otherwisethe “Assumed Liabilities”). Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not It is expressly included in understood that Purchaser is assuming only the Assumed Liabilities.

Assumed Liabilities. Upon (a) Pursuant to the terms of Assignment and subject Assumption Agreements in the form attached as Attachment A, Buyers agree to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: those trade payables (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the each a “Accounts Trade Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iiicollectively, “Trade Payables”) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of businessthe Business, as determined by Buyers in their sole discretion, in an amount not to exceed $540,000 in the aggregate, and excluding those liabilities described in paragraph 1.2(b). Assumed Liabilities Buyers shall include not be deemed to have assumed any liabilities specific Trade Payable until Buyers add such Trade Payable to Schedule 1.2(a), by identifying the payee and amount of such Trade Payable, which schedule may be amended by Buyers from time to time after Closing. If Buyers elect in their discretion to satisfy any trade payables of Sellers not included among the Trade Payables, then if such assumption is included on the closing statement at Closing, the Purchase Price shall be reduced by such amount, and if such assumption and payment occurs after Closing, Sellers agree to reimburse Buyers for any amount paid within 10 business days after written notice of payment by Buyers (a) Taxes relating and Buyers shall have a right of setoff for any unreimbursed amounts against any Contingent Consideration due to or arising out Sellers pursuant to paragraph 2.2). Buyers’ agreement to assume the Trade Payables is conditioned upon Sellers' agreement to pay its trade payables in the ordinary course of the Focus Factor Business accruing on and after business through the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made Date. Trade Payables assumed pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller paragraph 1.2 shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the be defined as “Assumed Liabilities”).

Assumed Liabilities. Upon In connection with its acquisition of the terms and subject to the conditions set forth in this AgreementAssets, Purchaser shall assume those liabilities arising from and after the ClosingClosing Date with respect to: (a) the Assumed General Contracts, the Buyer will assume Personal Property Leases, and paythe Real Property Leases, perform, discharge (b) those term loans or installment loans payable by Seller and be responsible for listed on the following obligations and liabilities attached Schedule 3.1(b) but only to extent the proceeds of such loan payables were used to acquire equipment or vehicles used in the ordinary course of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoBusiness, and (iiic) the Liabilities set forth on Schedule 5.8 employment matters specified in Article 8 (collectively, the “Assumed Liabilities”). The Parties acknowledge that until the Closing, Seller may make or incur capital expenditures with respect to the Business and may expand into territories in which Seller currently does not conduct its Business, but such capital expenditures or expansion are subject to the prior written consent of Purchaser in accordance with Section 7.4. If, in the ordinary course of the Business, Seller desires to make or incur such capital expenditures or expand its Business and the same is consented to by Purchaser in writing pursuant to Section 7.4, then Seller may finance such expenditures and costs of expansion by borrowing sufficient funds from Standard Federal Bank and the new loans payable by Seller shall be added to Schedule 3.1 (b) and assumed by Purchaser at Closing as an Assumed Liability; provided, however, that the Assumed Liabilities shall not include any obligations or liabilities that were not incurred terms of such borrowings and loans must be approved by Purchaser in writing in accordance with Section 7.4. Notwithstanding anything to the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to contrary contained in this Agreement, (c) one-half to the extent Seller desires to make or incur such capital expenditures or expand its Business and the same is not consented to by Purchaser in writing pursuant to Section 7.4, then Seller shall have no liability whatsoever to Purchaser for Seller’s failure to make or incur such capital expenditures or expand its Business. Purchaser shall be in entitled to withhold any and all of the Transfer Taxesconsents referred to above, if applicablein its sole and absolute discretion, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, without any liability of whatsoever to Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon As further consideration for the terms and subject purchase of the Assets to the conditions set forth in this Agreementbe effected hereby, from and after the Closing, the Buyer will Purchaser shall assume and pay, perform, discharge and be responsible for only the following liabilities and obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided): those liabilities of Seller which are properly reflected in Seller’s Closing Date Balance Sheet (as defined in Section 2.5) and, howeverwith respect to any Tax liabilities assumed, the Assumed Liabilities shall those which are not include past due or subject to any obligations or liabilities that were not incurred in the ordinary course uncertain Tax positions within meaning of business. ASC 740, “Income Taxes.” The Assumed Liabilities shall include any liabilities for only (a) Taxes relating to or arising out of the Focus Factor Business accruing on accounts payable (including commissions currently payable and after the Closing Date (including, without limitation, sales taxestaxes currently payable), (b) Taxes payable operating lease obligations for property used by Seller in its conduct of the Buyer resulting from payments made pursuant to this AgreementBusiness, (c) one-half customer deposit obligations that have not been applied towards inventory purchases or any other aspect of a customer installation and with respect to which Seller has not yet performed any services for the Transfer Taxes, if applicablecustomer, and (d) Taxes any deferred revenue under service contracts which are assignable and delegable and are assigned to and assumed by Purchaser (with any necessary consents from the customer-obligee and any other necessary third party); provided that the Assumed Liabilities shall expressly exclude (i) all undisclosed, unrecorded and unwritten liabilities of Buyer every type and character, (ii) all accounts payable owed to Littler Xxxxxxxxx PC and (iii) any and all indebtedness for borrowed funds, including indebtedness, obligations and liabilities, if any, of Seller to (A) the RDC, (B) * , (C) Seller’s investors, and (D) Seller’s capital option holders, or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesthem.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after the At each Closing, the Buyer will shall assume and agree to pay, perform, discharge and be responsible for the following perform when lawfully due only those obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned contracts and agreements set forth in Schedule 3.2 attached hereto and under the ROEs, Other Agreements and Contracts incurred that are part of the Transferred Assets, in each case only to the extent such obligations arise and relate to periods after the Effective Time of a Closing Date (the "Assumed Liabilities"). None of the obligations of Seller under such contracts and specifically excluding any obligations or liabilities under and breaches thereof agreements arising prior to the Effective Time of a Closing Dateshall be assumed by Buyer. Notwithstanding the foregoing definition of Assumed Liabilities, (A) which obligations and liabilities being assumed Buyer will not assume any obligation if Seller is in default under the terms of the agreement creating such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoobligation, and (iiiB) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall will not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include (i) any liabilities for with respect to breaches, defaults or omissions of Sellers under any agreements creating the Assumed Liabilities, (aii) Taxes any obligation relating to any contract or arising out agreement of Seller which is entered into by Seller after the Effective Date of this Agreement in violation of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to provisions of this Agreement, (ciii) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assumeexcept as provided in Section 3.6, any liability taxes of any kind owed by Seller, (iv) any obligation owed to any Affiliate of Seller, direct (v) the obligation of Seller to make payments to the owners of the MDU Properties and Contracted MDU Properties so long as Seller is obligated to make such payments under the terms of the Services Agreement, or indirect, known (vi) the obligation of Seller to refund prepayments by Subscribers as described in Section 3.7.3. and to return deposits to Subscribers with respect to analog or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesdigital converter boxes.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after At the Closing, the Buyer will or Parent shall assume and pay, perform, agree to satisfy and discharge as the same shall become due only those liabilities and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller and Shareholder set forth on Schedule 2.4(i) 2.3 hereto (the “Accounts Payable”"Assumed Liabilities"). The obligations of Seller and Shareholder under the Assumed Liabilities assumed hereunder and under the Assignment and Assumption Agreements (as defined in Section 2.4) are hereby independently assumed by Buyer and Parent, (ii) subject to the obligations representations, warranties, covenants and liabilities conditions made herein as to that obligation. Except as expressly set forth in the first sentence of this Section 2.3 and except for Scheduled Contracts assigned to Buyer in accordance with Section 4.7 of this Agreement, the Buyer and Parent shall not assume or otherwise be responsible at any time for any liability, obligation, debt or commitment of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing DateShareholder, whether pursuant to an agreementabsolute or contingent, by operation law accrued or transferee unaccrued, asserted or successor liabilityunasserted, or otherwise. The Seller acknowledges and agrees that the Buyer has no obligation to employ any current or former employees of the Seller following the Closing and is not assuming any liability, cost or expense with respect thereto. In furtherance and not in limitation of the foregoing the Seller understands and agrees that the Buyer may decide in its sole and absolute discretion to employ certain employees of the Seller following the Closing with such benefits (including vacation, pension, insurance and severance benefits) as the Buyer may adopt from time to time in its sole and absolute discretion and no such act of the Buyer shall be construed as an assumption by the Buyer of any of such obligations of the Seller. The Seller shall retainpay, satisfy and discharge (or make adequate provision therefor to Buyer's satisfaction) as the same shall become due all the liabilities, obligations, debts and commitments of the Seller not specifically assumed by the Buyer hereunder. The Buyer, Shareholder, Seller and Parent intend that the assumption of the Assumed Liabilities by Buyer and Parent shall not assume, any liability expand the rights or remedies of Seller, direct third parties against the Buyer or indirect, known or unknown, absolute or contingent, Parent as compared to the rights and remedies which such parties would have had against the Seller had this Agreement not expressly included in the Assumed Liabilitiesbeen consummated.

Assumed Liabilities. Upon On the terms Closing Date, Purchaser shall assume and subject agree to the conditions set forth in this Agreement, discharge only (i) Liabilities arising from and after the ClosingEffective Time under any Transferred Contract, including all payments due after the Buyer will assume and payEffective Time, performbut excluding any Liability to the extent arising out of, discharge and be responsible for or relating to, a breach of a Transferred Contract that occurred prior to the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)Effective Time, (ii) any Liability for Taxes attributable to the obligations Transferred Portions of this Exhibit were omitted and liabilities have been filed separately with the Secretary of the Seller Commission pursuant to the Company’s application requesting confidential treatment under Rule 406 promulgated under the Assigned Contracts incurred after the Securities Act of 1933, as amended; [*] denotes omissions. Assets for any Post-Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoTax Period, and (iii) all Liabilities related to the Liabilities Products or the ownership of the Transferred Assets arising from and after the Effective Time except as provided in and subject to any obligations set forth on Schedule 5.8 in the Development and Transition Services Agreement and (iv) the Assumed Development Cost Liabilities (collectively, the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include . It is understood that in no event will Purchaser or any obligations of its Affiliates be required to reimburse Seller or liabilities that were not incurred any of its Affiliates in an amount in excess of $16,000,000 in the ordinary course of business. Assumed Liabilities shall include any liabilities aggregate for (aA) Taxes relating Assumed Development Cost Liabilities; (B) all amounts that are paid to or arising out Seller for Reimbursed Development Costs and (C) for all amounts that will be paid for Development of Products under and pursuant to the Development and Transition Services Agreement, notwithstanding the amount of any Liabilities that may be described on Exhibit F and except as otherwise provided in Section 2.4 of the Focus Factor Business accruing on Development and after the Closing Date (includingTransition Services Agreement. Except as expressly provided in this Section 2.3, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half none of the Transfer Taxes, if applicable, and (d) Taxes of Buyer Purchaser or any other Person, relating of its Affiliates will be deemed for any reason to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee have become liable for or successor liabilityto any other liabilities or obligations, liquidated or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirectunliquidated, known or unknown, absolute of Seller or contingent, not expressly included in the Assumed Liabilitiesany of its Affiliates or successors.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in of this Agreement, from and after at the Closing, the Closing Buyer will shall assume and agree to pay, performdischarge or perform when due, discharge and be responsible for as appropriate, only the following obligations and liabilities of the SellerLiabilities: (ia) the accounts payable all executory Liabilities of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred Contracts, but only to the extent that such Liabilities thereunder are required to be performed after the Closing Date (and specifically excluding any obligations do not arise from or liabilities under and breaches thereof arising in connection with a breach of the terms of the applicable Assigned Contract by Seller on or prior to the Closing Date; (b) which accrued expenses, accounts payable and deferred revenue obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth as of the Closing Date to the extent reflected on Schedule 2.4(ii) hereto, the Balance Sheet or accrued since the Balance Sheet Date in the ordinary course of business; and (iiic) all warranty claims arising after the Liabilities set forth Closing that relate to the pre-Closing period up to the amount of the reserve therefor reflected on Schedule 5.8 the Balance Sheet or accrued since the Balance Sheet Date in the ordinary course of business (such assumed Liabilities, the “Assumed Liabilities”). For the avoidance of doubt, Buyer shall be liable for all Liabilities arising from the operation of the Business or the ownership of the Purchased Assets first arising during any period after the Closing and that are, except as included in the Assumed Liabilities, not incurred as a result of or in connection with any action, omission, obligation or liability of Seller or its Affiliates occurring or existing prior to the Closing; provided, however, that notwithstanding anything to the Assumed Liabilities contrary, the foregoing shall not include any in no way limit the rights of Buyer to enforce obligations or liabilities that were not incurred of the Seller and pursue remedies against the Seller under the Transition Services Agreement in accordance with the terms of the Transition Services Agreement in the ordinary course event of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to a breach or arising out default by the Seller of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half terms of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesTransition Services Agreement.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer Purchaser will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of from Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) at Closing only the obligations and liabilities of Seller related to (i) the ownership and operation of the Facilities which accrue or otherwise are to be performed on or after Closing in respect of the contracts and agreements listed in Schedule 2.2 attached hereto (collectively referred to herein as the "Assumed Contracts"), in each case as in effect at Closing and solely to the extent that the existence at or after Closing of such liabilities or obligations does not constitute a breach of any representation or warranty made by Seller under the Assigned Contracts incurred after the Closing Date herein or in connection herewith; (ii) proratable items which are not yet due and specifically excluding any obligations or liabilities under and breaches thereof arising payable by Seller prior to the or at Closing Date) and for which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, Purchaser receives a credit at Closing; and (iii) obligations with respect to any security deposits or patient trust funds held by Seller and transferred to Purchaser on the Liabilities set forth on Schedule 5.8 Closing Date. The liens and other related security regarding the Pension Notes secured by the Facilities (the “Assumed Liabilities”); provided"Mortgage") shall be released at Closing. Notwithstanding anything to the contrary herein, howeveror in any other writing delivered in connection herewith, nothing herein or in any such other writing shall be construed to constitute the Assumed Liabilities shall not include assumption, express or implied, by Purchaser of any obligations or liability of Seller or of any Affiliate thereof, except solely for the obligations and liabilities expressly agreed to be assumed at Closing by Purchaser pursuant to the first sentence of this Section 2.2. To the extent that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after Assumed Contracts are not assignable without the Closing Date (includingconsent of a third party, without limitation, sales taxes), (b) Taxes payable by this Agreement shall not of itself constitute an assignment or an attempted assignment of such Assumed Contracts if such assignment or attempted assignment would constitute a breach thereof. Seller will use all reasonable efforts to obtain the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating consent to the Focus Factor Business on and after the Closing Date, whether pursuant assignment to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability Purchaser of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the each such Assumed LiabilitiesContract with respect to which such consent is required for such assignment.

Assumed Liabilities. Upon At the terms and subject Closing with respect to any Country Unit, Buyer shall assume the Assumed Liabilities to the conditions set forth extent relating to such Country Unit (except in this Agreementthe case of the Assumed Liabilities in respect of the Transferred IP and the Transferred IP Agreements). Buyer shall promptly reimburse Seller for the performance by Seller (or any of its Affiliates) of any Assumed Liability the performance of which by, from or on behalf of, Buyer (or an Affiliate of Buyer) is not accepted by the obligee in the exercise of such obligee’s lawful rights. After the Closing with respect to any Country Unit, Buyer shall be solely liable for the payment, satisfaction and performance of the Assumed Liabilities relating to such Country Unit as and when such liabilities become due. Notwithstanding anything to the contrary herein, at the Principal Closing, Buyer shall assume the Assumed Liabilities in respect of the Transferred IP and the Transferred IP Agreements and shall agree to satisfy and discharge when due the liabilities and obligations of Seller (and its Affiliates) pursuant to such Assumed Liabilities, and after the Principal Closing, the Buyer shall pay such Assumed Liabilities as and when such liabilities become due. Buyer will assume execute and pay, perform, discharge and be responsible for deliver to Seller at each Closing an assumption agreement in the following obligations and liabilities form of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) Exhibit E (the “Accounts PayableAssumption Agreement”)) and such other agreements and instruments as Seller may reasonably request, (ii) the obligations whereby Buyer shall assume and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (undertake to pay, perform and specifically excluding any obligations or liabilities under discharge as and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, when due the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesapplicable Country Units.

Assumed Liabilities. Upon As of the terms Closing, Buyer will assume and subject agree to discharge and perform (i) all of Seller's obligations under the Contracts but only to the conditions set forth in this Agreement, extent such contracts are listed on Schedule 2.1(d) and only to the extent that such obligations (A) arise from and after the Closing or (B) are related to promotional activities (such as advertising, trade deals, and the like) that occur after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) any open purchase orders delivered to suppliers related to the obligations Business for which the goods or services being purchased by Seller relate exclusively to the Business and liabilities of the Seller under the Assigned Contracts incurred are delivered to Buyer after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior but only to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts extent those contracts are specifically set forth listed on Schedule 2.4(ii) hereto2.1(d), and (iii) those open purchase orders received from customers related to the Liabilities set forth Business that have not been fulfilled and paid for as of Closing but only to the extent those contracts are listed on Schedule 5.8 2.1(d), (iv) customer and shelf space contracts but only to the “Assumed Liabilities”extent those contracts are listed on Schedule 2.1(d); provided, however, (v) supplier contracts but only to the Assumed Liabilities shall extent those contracts are listed on Schedule 2.1(d); and (vi) all liabilities and obligations with respect to (A) any trade deals related to the Business which have been offered to the trade but not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating reimbursed by Sellers prior to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxesoff-invoice allowances, billback allowances, in-ad coupons and lump sum allowances) but only to the extent those trade deals are listed or summarized on Schedule 2.1(d), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (dB) Taxes of Buyer or any other Person, relating and all coupons related to the Focus Factor Business which are redeemed or reimbursed on and or after the Closing Date, whether pursuant Date but only to an agreement, by operation law the extent those coupons are listed or transferee or successor liability, or otherwisesummarized on Schedule 2.1(d) (the "Assumed Liabilities"). Seller shall retain, "Assumed Liabilities" does not include and Buyer shall not assume, assume any liability for any tortious or other wrongful action, breach of Sellercontract, direct or indirectnonperformance of any duty by Seller at any time before or after the Closing. In determining the portion of any items with respect to (i)(A), known or unknownabove, absolute or contingent, not expressly included in the that are Assumed Liabilities, the allocation of pre-Closing and post-Closing cost shall be made on the basis of the volume of the affected products sold during the promotional event in each such period, or, if volume analysis is not practical, then on such other cost allocation method as the parties may agree.

Assumed Liabilities. Upon the terms and subject Without limiting Buyer’s rights to indemnity under Article XI, Buyer’s rights to adjustments to the conditions set forth in this AgreementPurchase Price pursuant to Section 3.2, and Buyer’s remedies for Title Defects and Environmental Defects pursuant to Article VI, from and after the Closing, the Buyer will shall assume and payhereby agrees to fulfill, perform, pay and discharge (or cause to be fulfilled, performed, paid and be responsible for the following discharged) all obligations and liabilities Liabilities, whether known or unknown, liquidated or contingent, to the extent arising from, based upon, related to, or associated with, (X) the Conveyed Properties (including the ownership or operation of Oakfield) whether such obligations and Liabilities are deemed to have arisen or accrued or are attributable to periods prior to, on or after the Effective Time (including the Environmental Obligations and P&A Obligations) and (Y) from and after the expiration (if ever) of the Seller: (i) the accounts payable of Seller applicable Survival Periods set forth on Schedule 2.4(i) (the “Accounts Payable”in Section 4.3(e), the Retained Obligations (ii) the all such obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoLiabilities, and (iii) the Liabilities set forth on Schedule 5.8 (collectively, the “Assumed Liabilities”); provided, however, that nothing in this Section 2.4 shall prejudice Buyer’s remedies with respect to a bona fide claim made pursuant to, and in accordance with, Section 11.2 with respect to, and the Assumed Liabilities shall not include include, (i) any obligations or liabilities that were not incurred in Seller Taxes, (ii) any other Retained Liability prior to the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out expiration of the Focus Factor Business accruing on and after applicable Survival Period or (iii) any other matter to the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by extent Seller is obligated to indemnify the Buyer resulting from payments made Indemnified Parties pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon (i) Buyer shall, on and as of the terms First Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from (A) liabilities and obligations arising out of events occurring on and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities First Closing Date related to Buyer's ownership of the Seller: Assets and Buyer's operation of the Business after the First Closing Date, excluding those liabilities and obligations related to Subsidiary; (iB) those current liabilities and accrued expenses of Seller as of the First Closing Date consisting of (1) accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. business (the "Assumed Liabilities shall include any liabilities for Current Liabilities") and (a2) Taxes relating unearned revenues; (C) all obligations and liabilities, excluding those related to or arising out of the Focus Factor Business accruing on and Subsidiary, which are to be performed after the First Closing Date (arising under the Contracts, including, without limitation, sales taxes)Seller's obligations to subscribers under such Contracts for (1) subscriber deposits held by Seller as of the First Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (b2) Taxes payable up to $48,000 of subscriber advance payments held by Seller as of the First Closing Date for services to be rendered in connection with the Business in the amount for which Buyer resulting from payments made receives a credit pursuant to this Agreement, (cSection 1.6(a) one-half of the Transfer Taxes, if applicablebelow, and (d3) Taxes the delivery of Buyer or any other Person, relating Internet connectivity service to the Focus Factor Business on and after the Closing Datesubscribers, whether pursuant to an agreement, by operation law or transferee or successor liability, a Contract or otherwise. , after the First Closing Date; (D) fifty percent (50%) of the investment banking fees owed by the Seller shall retainto PricewaterhouseCoopers Securities LLC on account of the transactions contemplated herein up to a maximum amount of one hundred thousand dollars ($100,000); and (E) the superPOP liability identified in Schedule 1.3(a)(i) ((A), (B), (C), (D) and Buyer shall not assume(E) together, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the "Assumed Liabilities").

Assumed Liabilities. Upon (i) Purchaser does not and shall not assume or agree to assume the terms liabilities and subject obligations of Seller of any nature, direct, contingent or otherwise, except (A) all liabilities and obligations with respect to the conditions set forth in this Agreement, performance under each of the Assumed Contracts at the Closing from and after the ClosingClosing Date, provided the Buyer will other contracting party or parties consent to the assignment of such contract to Purchaser or, if the other contracting party or parties do not consent to the assignment, Purchaser shall assume the liabilities and payobligations thereunder only for so long as it receives the benefits thereunder, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (iB) the trade accounts payable and accrued expenses of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior relating to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not Business incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out business and outstanding as of the Focus Factor Business accruing on Closing Date other than those payable to Pall and after HMP (the "Trade Payables"), (C) all liabilities and obligations of Seller under the Real Estate Lease, (D) all accrued commissions due employees of Seller other than the Retained Employees as of the Closing Date for sales by Seller in the ordinary course of business under commission agreements or arrangements customarily maintained by Seller and in effect as of June 30, 2002 and (E) the Just In Time Accruals incurred in the ordinary course of business and outstanding as of the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by all of such assumed liabilities being herein referred to as the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the "Assumed Liabilities").

Assumed Liabilities. Upon the terms and subject 11.5. Notwithstanding anything to the conditions set forth contrary contained in this Agreement or in the documents executed by the parties pursuant to this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) no claim for indemnification pursuant to Section 11.3 may be made unless such claim is in writing and made prior to the accounts payable first anniversary of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)Closing Date, (ii) the obligations and liabilities maximum aggregate liability of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoSelling Parties, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include maximum aggregate amount which may be awarded to and collected by Buyer and/or any obligations or liabilities that were not incurred in the ordinary course assignee of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date Buyer (including, without limitation, sales taxes)for any breach of any representation, (bwarranty and/or covenant by either or both of the Selling Parties) Taxes payable by the Buyer resulting from payments made under this Agreement, or any other documents executed pursuant to this Agreement (other than the Supply Agreement and Transition Services Agreement), shall under no circumstances whatsoever exceed an aggregate amount equal to five percent (c5%) one-half of the Transfer TaxesTotal Purchase Price; and (iii) no claim by Buyer and/or any assignee of Buyer alleging a breach by either or both of the Selling Parties of any representation, if applicablewarranty and/or covenant of either or both of the Selling Parties contained herein or in any other documents executed pursuant to this Agreement (other than the Supply Agreement and Transition Services Agreement) may be made, and (d) Taxes of Buyer the Selling Parties shall not be liable for any judgment in any action based upon any such claim, unless and until such claim, either alone or together with any other Personclaims by Buyer alleging a breach by either or both of the Selling Parties of any such representation, relating warranty and/or covenant is for an aggregate amount in excess of Twenty-Five Thousand Dollars ($25,000.00) (the “Threshold”), in which event the Selling Parties’ liability respecting any final judgment concerning such claim or claims shall be for the entire amount thereof, subject to the Focus Factor Business on and after limitation set forth in clause (i) above; provided, however, that if any such final judgment is for an amount that is less than or equal to the Closing DateThreshold, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller then the Selling Parties shall retain, and Buyer shall not assume, any have no liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitieswith respect thereto.

Assumed Liabilities. Upon Subject to the terms and subject to the conditions set forth in this Agreement, from the LLC and after Buyer shall, and may also cause a pertinent Buyer Subsidiary or Buyer Subsidiaries to, jointly and severally with the ClosingLLC and Buyer, the Buyer will assume and pay, perform, discharge and be responsible for perform as and when due, only the following obligations and liabilities of Sellers (the Seller: "Assumed Liabilities"): (a) All liabilities and obligations of Sellers which both (i) pertain to or are to be paid or performed during the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after period following the Closing Date (except to the extent that, but for the breach of Sellers, such liabilities and specifically excluding any obligations would have been paid or liabilities under and breaches thereof arising performed prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto), and (iiiii) arise under any contract, License, agreement, arrangement, understanding or undertaking included in the Liabilities set forth on Assets, including the Assigned Contracts, and any other obligation or liability of Sellers or any Affiliate of Sellers (including letters of credit and performance bonds) which is in the nature of a guaranty of the foregoing, to the extent the same are enumerated in Schedule 5.8 2.3(a) (the “Assumed Liabilities”); provided, howevertogether, the "Assumed Liabilities shall not include Contracts"). (b) All liabilities and obligations of Sellers under open purchase orders pertaining to any obligations or liabilities Asset that were not incurred entered into by Sellers in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating business with respect to or arising out operation of the Focus Factor Business accruing Plant on and after or prior to the Closing Date and which provide for the delivery of goods or services subsequent to the Closing Date. (c) Without limiting Sellers' representations and warranties contained in Article 3 or Buyer's right under Article 12 with respect to a breach thereof, any and all liabilities and obligations to third parties respecting any changes or improvements needed to the Plant, if any, for them to be in material compliance following the Closing with respect to safety, building, fire, land use, access (including, without limitation, sales taxesthe Americans With Disabilities Act ("ADA"), (b) Taxes payable by or similar Laws respecting the Buyer resulting from payments made pursuant to this Agreement, (c) one-half physical condition of the Transfer Taxes, if applicable, and Plant. (d) Taxes Without limiting Sellers' representations and warranties contained in Article 3 or Buyer's rights under Article 12 for a breach thereof, and except for the Excluded Liabilities specifically listed in Section 2.4 (including those described in Section 2.4(i)), any and all liabilities, claims, and expenses (including, without limitation, those arising under Environmental Laws, or otherwise) in any way arising out of Buyer or related to or associated with the ownership, possession, use or operation of the Assets or any other Person, relating to the Focus Factor Business on and business conducted therewith or therefrom after the Closing Dateor any and all such liabilities, whether pursuant claims and expenses in any way arising from a change in Laws after the date hereof. Page 12 - CENTRALIA PLANT PURCHASE AND SALE AGREEMENT (e) Such miscellaneous and sundry liabilities, identified by category on Schedule 2.3(e), if any, which liabilities are ancillary to an agreement, by the ownership and operation law or transferee or successor liability, or otherwiseof the Assets and the Plant but are not otherwise enumerated above. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.Section 2.4

Assumed Liabilities. Upon Pursuant to the terms of this Agreement and subject to the conditions set forth in this Management Agreement, Buyer shall assume from Seller and after the Closing, the Buyer will assume and thereafter pay, perform, and/or discharge and be responsible for the following obligations and liabilities of the Sellerin accordance with their respective terms: (i) all liabilities arising from, or otherwise relating to, the accounts payable of Seller set forth Sale Assets accruing or arising on Schedule 2.4(i) (or after the “Accounts Payable”), Commencement Date; (ii) the obligations any and liabilities of the Seller all Expenses assumed by Buyer under the Assigned Contracts incurred after the Closing Date (and specifically excluding as defined in the Management Agreement) and any obligations or liabilities under and breaches thereof arising prior Shortfall Advances (as defined in the Management Agreement) necessary to the Closing Date) which obligations and liabilities being assumed under fund such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and Expenses; (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); providedSeller’s obligations, howeverincluding without limitation, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred for commissions due and payable in the ordinary course of business. Assumed Liabilities shall include business and consistent with Seller’s historical manner under the Assigned Contracts on or after the Commencement Date and (iv) on the Closing Date, any liabilities for (a) Taxes relating to or arising out commissions that may exist under any of the Focus Factor Business accruing Assigned Contracts arising on or prior to the Commencement Date (the "Preexisting Commissions") up to an aggregate but not exceeding $2,400,000, (the "Assumed Commissions") (collectively the "Assumed Liabilities"), provided, however, that prior to the Commencement Date Seller shall remain liable for and after pay all Preexisting Commissions in excess of $2,400,000, and indemnify and hold Buyer harmless for same. The Assumed Commissions shall be fixed and determined as of the Commencement Date, but shall be assumed by Buyer as of the Closing Date (includingDate. Buyer, without limitation, sales taxes), (b) Taxes payable by during the Buyer resulting from payments made pursuant to this Term of the Management Agreement, (cmay pay, cause to be paid, satisfy or otherwise resolve the Assumed Commissions and to the extent any Assumed Commissions are paid, caused to be paid, satisfied or otherwise resolved, Buyer shall receive a credit towards the Section 3.1(a)(iii) one-half portion of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to Purchase Price on the Focus Factor Business on Closing Date. From and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesCommissions shall be a liability assumed by Buyer.

Assumed Liabilities. Upon On the terms basis of the representations, warranties, covenants and agreements and subject to the satisfaction of the conditions set forth in this Agreement, from on the Closing Date, Buyer shall assume and after the Closingagree to pay, perform and discharge when due, the Buyer will assume following liabilities and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (a) Seller's obligations under the contracts listed on Schedule 1.1 which are assigned by Seller to Buyer and as to which Buyer succeeds to the rights of Seller, but only to the extent of liabilities and obligations that occur thereunder after the opening of business on the Closing Date; (b) Seller's obligations under the licenses, permits and franchises listed in Schedule 1.1(g), but only to the extent of liabilities and obligations that arise thereunder after the close of business on the Closing Date; (c) liabilities and obligations specifically listed on Schedule 1.5 and (d) those liabilities expressly assumed by Buyer pursuant to the terms of this Agreement. Buyer is not assuming, nor shall it be deemed to have assumed, (i) the accounts payable any liability or obligation of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)any kind or nature, except as provided in this Section 1.5, (ii) any liability or obligation relating to the obligations and liabilities excluded assets described in Section 1.2. or (iii) any liability or obligation relating to the operations of the Seller under the Assigned Contracts incurred after Seller's business prior to the Closing Date (and specifically excluding including any environmental, employee-related or product liability related liabilities or obligations (whether or not relating to any of the Assets purchased, including any liabilities under and breaches thereof arising relating to design or manufacturing defects which defects occurred prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) whether or not the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred claim resulting in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating liability arises prior to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant . The liabilities and obligations assumed by Buyer in accordance with this Section 1.5 are sometimes hereinafter referred to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in as the "Assumed Liabilities."

Assumed Liabilities. Upon the terms (a) The Assets shall be sold and subject conveyed to the conditions set forth in this AgreementBuyer free and clear of all Liens (as defined below), from and after except Permitted Liens (as defined below). Subject to Section 1.5(b) below, at the Closing, the Buyer will assume and agree to fully pay, performperform or discharge in a timely manner, discharge fully in accordance with the respective terms thereof, as and be responsible for the following obligations and liabilities of the Seller: when they become due, (i) the accounts payable all liabilities and obligations of Seller set forth on Schedule 2.4(i) (relating to the “Accounts Payable”)Assets or the Business arising from, or in connection with, the conduct of the Business or the ownership of the Assets by Buyer or any other person after the Closing Date; (ii) all liabilities and obligations of Seller under the terms of the Assumed Contracts, except for (A) those liabilities and obligations which Seller is required to satisfy prior to the Closing (except to the extent such liabilities or obligations are reflected on the Final Closing Balance Sheet) or (B) which arise due to a breach by Seller of an Assumed Contract prior to the Closing; (iii) all accounts payable and other current liabilities of the Seller under the Assigned Contracts incurred after as of the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not in each case incurred in the ordinary course of business. Assumed Liabilities shall include the Business to the extent reflected on the Final Closing Balance Sheet; (iv) to the extent that the FANAV exceeds the Cap, any liabilities for (a) Taxes relating to or arising out obligations under Assumed Contracts, accounts payable and other current liabilities of the Focus Factor Seller not set forth in clauses (i), (ii) or (iii) above that were incurred in the ordinary course of the Business accruing on and after as of the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half and of the Transfer Taxes, if applicable, type reflected as liabilities on the Pro Forma Balance Sheet (but any such additional obligations and (d) Taxes of Buyer or any other Person, relating liabilities shall be assumed only to the Focus Factor Business on and after extent of the Closing Date, whether pursuant to an agreement, amount by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.which

Assumed Liabilities. Upon As of the terms and subject to the conditions set forth in this AgreementClosing Date, from and after the Closing, the Buyer will shall assume and agree to pay, perform, perform and discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior subsequent to the Closing Date) which obligations and , plus those other liabilities being assumed under such certain Assigned Contracts are specifically set forth disclosed on Schedule 2.4(ii) hereto1.3 (collectively, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”), plus: (i) Seller’s contractual obligations under current resident agreements, assuming no future service obligations (as defined in the AICPA Audit Guide for Health Care Organizations, Chapter 14, formerly known as Statement of Position 90-8, Financial Accounting and Reporting by Continuing Care Retirement Communities); (ii) all unearned resident entrance fees; (iii) all deferred revenue for future services and residents’ advance deposits; and (iv) the contractual obligations under certain service contracts of Seller related to pharmacy, food service, housekeeping and laundry for a period of not less than one (1) year after Closing; and (v) all liability and payment obligations related to Seller’s commitment or obligation to pay any person or entity serving as guardian of the person of any Facility residents. Seller and Buyer agree that Buyer shall assume and perform the obligations of Seller arising subsequent to the Closing Date under each of the Contracts, regardless of whether consent to the assignment of each such Contract is required but not obtained; provided, however, the Assumed Liabilities that Seller shall not include indemnify and hold Buyer harmless from and against any obligations or liabilities claim related to failure to obtain consent made against Buyer by any party to a Contract that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating consent to the Focus Factor Business on and after the Closing Date, whether pursuant assignment of such Contract by Seller to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall is required but has not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesbeen obtained.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date including, without limitation utility charges, rent under assumed leases and similar obligations to third parties, which shall be prorated between Seller and Buyer as of the Closing Date; (ii) those current liabilities and accrued expenses of Seller as of the Closing Date consisting of (A) accounts payable arising in the ordinary course of business and (B) unearned revenues (the "Assumed Current Liabilities and Accrued Expenses") and (iii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxes), Seller's obligations to Subscribers (bas defined in Section 2.16) Taxes payable under such Contracts for (A) Subscriber deposits held by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half Seller as of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, (B) Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business ((A) and (B) are collectively referred to as the "Subscriber Obligations"), and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to an agreement, by operation law or transferee or successor liability, a Contract or otherwise) after the Closing Date ((i), (ii) and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer and Seller shall retain, and Buyer shall not assume, have any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesrights under this Agreement.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after At the Closing, the Buyer will shall assume and agree to fully pay, performperform or discharge or cause to be fully paid, discharge and be responsible for the following obligations and liabilities of the Seller: performed or discharged when due, (i) only the accounts payable post-Closing Liabilities arising out of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (iiA) the obligations contracts, equipment leases, license agreements, permits and liabilities agreements of or relating to the Business listed on Section 1.3(a)(i)(A) of the Seller under Disclosure Schedule, the Assigned Contracts incurred benefits of which are assigned to Buyer or for which Buyer otherwise receives substantially all of the economic benefits thereof pursuant to this Agreement to the extent, and only to the extent, such obligations accrue after the Closing Date or are expressly assumed by Buyer (the "Fully Acquired Agreements") and specifically excluding any obligations (B) the contracts and agreements of or liabilities under and breaches thereof arising prior relating to the Closing DateBusiness listed on Section 1.3(a)(i)(B) of the Seller Disclosure Schedule, a portion of the benefits of which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoassigned to Buyer or for which Buyer otherwise receives a portion of the economic benefits thereof pursuant to this Agreement to the extent, and (iii) only to the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); providedextent, however, the Assumed Liabilities shall not include any such obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and accrue after the Closing Date or are expressly assumed by Buyer (includingthe "Partially Acquired Agreements," and together with the Fully Acquired Agreements, without limitation, sales taxesthe "Acquired Agreements"), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, ; and (dii) Taxes all Liabilities arising out of (A) Products manufactured by Buyer or any other Person, and (B) outstanding open order obligations to vendors for raw materials relating to the Focus Factor Business on existing as of the end of the Manufacturing Transition Period (the Liabilities described in clauses (i) and after (ii) above, collectively, the Closing Date"Assumed Liabilities"). Notwithstanding this Section 1.3(a), whether pursuant to an agreementthe extent that any Acquired Agreement is not capable of being sold, by operation law assigned, transferred or transferee conveyed without the authorization, approval, consent or successor liabilitywaiver of any other party thereto, or otherwise. Seller shall retain, and Buyer shall not assume, any liability Buyer's assumption of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesLiabilities with respect to such Acquired Agreement shall only become effective upon such other party's authorization, approval, consent or waiver thereto.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations , Buyer shall assume and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoagree to pay, perform and discharge, as and when due, the following, and only the following, Liabilities of Company (iii) the Liabilities set forth on Schedule 5.8 (collectively, the “Assumed Liabilities”): (a) all Liabilities of Company accruing solely and entirely on or after the Closing Date under the Assumed Contracts and unrelated to any pre-Closing breach of such Assumed Contracts; (b) all Liabilities of Company accruing solely and entirely on or after the Closing Date under Contracts which are serviced by Buyer on behalf of Company pursuant to Section 2.5 until such time, if any, that Buyer delivers a Cancellation of Beneficial Rights Notice, in which case such Liabilities arising after such time shall not be Assumed Liabilities; and (c) the following Liabilities of Company reserved against on the face of the Final Closing Balance Sheet, but only in the amounts so reserved: (i) trade payables; (ii) accrued vacation, holiday and/or sick pay for employees of Company that Buyer elects to hire (“Accrued Vacation”); provided(iii) ordinary course and accrued Liabilities relating to facilities and/or equipment used in connection with the operation of Company (other than indebtedness); and (iv) deferred revenue (collectively, howeverthe “Accrued Liabilities”). The assumption of and agreement by Buyer to pay, perform and discharge, as and when due, the Assumed Liabilities shall not include prohibit Buyer from contesting with any obligations third party the amount, validity or liabilities that were not incurred in the ordinary course enforceability of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date; (ii) those current liabilities and accrued expenses of Seller as of the Closing Date consisting of (A) accounts payable arising in the ordinary course of business and (B) unearned revenues (the "Assumed Current Liabilities and Accrued Expenses" and (iii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxesSeller's obligations to Subscribers (as defined in Section 2.16) under such Contracts for (A) Subscriber deposits held by Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or otherwise) after the Closing Date ((i), (bii) Taxes payable and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by the Buyer resulting from payments made pursuant to hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer and Seller shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon (a) At the terms Closing, Seller will assign and transfer to Buyer, and Buyer will assume, and thereafter shall fully perform and discharge, on a timely basis and in accordance with their respective terms, the liabilities and obligations of Seller listed on Schedule 1.4 hereto, (together the "Assumed Liabilities") including listed contracts and the liabilities set forth on Schedule 1.4.A. Without limiting the generality of the foregoing, except for the Assumed Liabilities or as provided in the Operative Agreements, Buyer is not assuming or undertaking any obligations or liabilities of Seller to any assets or contracts which are not included in the Transferred Assets or the Assumed Liabilities. Buyer is assuming and undertaking, and Seller shall not remain liable for, any obligations or liabilities of Seller, contingent or otherwise, whenever asserted, relating to vacation prior to the Closing and to a 401(k) benefit plan, all as set forth in this Agreement (and subject to the conditions limitations set forth in Section 4.2 of this Agreement) and such obligations and liabilities are specifically included in the Assumed Liabilities. Except as set forth in the Operative Agreements, from Buyer shall not assume any liabilities of Seller whether accrued, absolute or contingent, recorded or unrecorded or otherwise, and after Seller shall be responsible for, all accounts payable, accrued expenses, and Taxes that relate to the period prior to the Closing, including, but not limited to the Buyer will assume foregoing and pay, perform, discharge all liabilities and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)with respect to current or former employees, (ii) the obligations directors and liabilities independent contractors of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed , including under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesemployee benefit plans.

Assumed Liabilities. Upon Sellers shall transfer the terms and subject Acquired Assets to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (free and specifically excluding clear of all Security Interests and Buyer shall not, by virtue of its purchase of the Acquired Assets, assume or become responsible for any debts, liabilities, obligations or liabilities under and breaches thereof arising encumbrances of Sellers or of any other person relating to the Acquired Assets, incurred prior to the Closing Date) which . The only debts, liabilities, obligations and liabilities or encumbrances of any nature of Sellers being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 by Buyer (the “Assumed Liabilities”); provided) are (a) the obligations of Sellers under the terms of the Leases, however, Licenses and Assigned Contracts arising after the Assumed Liabilities shall not include any obligations or liabilities that were not incurred Closing Date in the ordinary course provided, that such Leases, Licenses and Assigned Contracts have been assigned and validly transferred to Buyer, (b) the obligations of business. Assumed Liabilities shall include any liabilities Sellers for (a) Taxes relating to or telephone listings for the Stores arising out of the Focus Factor Business accruing on and after the Closing Date, and (c) the prorated share of personal and real property taxes for the Leased Properties and Fee Properties for periods after the Closing Date, or for periods after the Fee Property Closing Date with respect to the Fee Properties purchased pursuant to the Cross Option Agreement, except to the extent any such taxes have previously been pre-paid by Sellers. All other liabilities of Sellers or related to the Stores or the Business (whether known or unknown) shall remain obligations of Sellers (the “Excluded Liabilities”). Except for the Assumed Liabilities, Buyer shall not assume or be liable for, and does not undertake to attempt to, assume or discharge, any Security Interest or any other payment obligation, performance obligation, contingency or liability, whether fixed, contingent, liquidated, unliquidated, matured, unmatured, asserted or unasserted, of either Seller whether or not relating to the Stores or the Business including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.Sellers’ liabilities with respect to:

Assumed Liabilities. Upon Buyer agrees to and shall at the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer will Closing assume and agree to pay, perform, discharge and be responsible for the following perform when lawfully due only those liabilities, contracts, commitments and other obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth that are listed on Schedule 2.4(i) SCHEDULE 2.2 hereto (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “"Assumed Liabilities”"); provided. Seller agrees to satisfy and discharge all debts, however, liabilities and obligations of Seller other than the Assumed Liabilities shall not include any obligations or liabilities that were not incurred as they come due in the ordinary course of business, whether known at the Closing or thereafter determined, and Seller expressly agrees to hold Buyer harmless with respect thereto. The undertakings of Buyer referred to in this Section 2.2 shall not in any way limit Buyer's right of recourse for any breach of the covenants, representations, or warranties of Seller contained in this Agreement. The assumption by Buyer of the Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out be construed so that none of the Focus Factor Assumed Liabilities shall be expanded, increased, broadened, or enlarged as to rights or remedies that any third party might have had against Seller had the acquisition of the Acquired Business accruing on by Buyer not taken place. Nothing in this Agreement shall be deemed or construed to foreclose either Buyer or Seller from contesting in good faith the duties and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable liabilities to third parties that are assumed by the Buyer resulting from payments made pursuant to this Agreement or retained by Seller pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after . On the Closing Date, whether Buyer shall deliver to Seller an instrument, substantially in the form of EXHIBIT G, pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in which it will assume the Assumed Liabilities.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein no Seller shall have any further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business on or after the Closing Date; (ii) all obligations and liabilities of each Seller which are to be performed on or after the Closing Date arising under the Contracts, including, without limitation, sales taxes)such Seller's obligations to Subscribers under such Contracts for (A) Subscriber deposits, if any, held by such Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (bB) Taxes payable Subscriber advance payments held by such Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer resulting from payments made receives a credit pursuant to this Agreement, (cSection 1.6(a) one-half of the Transfer Taxes, if applicablebelow, and (dC) Taxes the delivery of Buyer the services of the Business, including, but not limited to, internet connectivity service to Subscribers (whether pursuant to a Contract or any other Person, relating to the Focus Factor Business otherwise) on and or after the Closing Date; and (iii) the Current Liabilities (as hereinafter defined) of such Seller ((i), whether pursuant to an agreement(ii) and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer hereunder shall not assume, enlarge any liability rights of Seller, direct third parties under contracts or indirect, known arrangements with Buyer or unknown, absolute any Seller or contingent, not expressly included in the Assumed Liabilities.any of their respective affiliates or

Assumed Liabilities. Upon On the terms and subject to the conditions set forth specified in this Agreement, from and after at the Closing, the Buyer will assume and agree to pay, performperform and discharge when due, discharge and be responsible for subject to Buyer's right to dispute the following obligations and liabilities in good faith, (i) all of the Seller: (i) 's obligations under the accounts payable of Seller set forth agreements, leases, contracts and commitments indicated with a notation that such obligation is to be assumed by Buyer on Schedule 2.4(i) 4.8 and Schedule 4.11 attached hereto (the “Accounts Payable”"Assumed Contracts"), and under sales and purchase orders entered into in the ordinary course of business (ii) other than obligations resulting from, arising out of, relating to, in the obligations and liabilities nature of, or caused by, breach of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations contract, breach of warranty, tort, infringement, or liabilities under and breaches thereof arising violation of law, relating to facts or circumstances existing prior to the Closing Date) which obligations ), but in each case only to the extent that such agreements, leases, contracts, commitments and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, sales and purchase orders constitute Purchased Assets and have been validly assigned to Buyer hereunder or Buyer is otherwise able to assume the benefits thereof and (iiiii) Seller's rebate obligations entered into with its customers prior to the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating Closing Date and earned prior to or arising out of the Focus Factor Business accruing on and after the Closing; provided that with respect to each customer Buyer shall assume and be required to pay only such amounts earned prior to the Closing Date to the extent Seller pays to Buyer the Seller's Rebate Obligation with respect to such customer in accordance with Section 8.15. The items in clauses (including, without limitation, sales taxes), (bi) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (dii) Taxes above are collectively referred to herein as the "Assumed Liabilities." Schedule 1.1(c) attached hereto specifies Seller's customer rebate programs entered into with, or extended to, customers on or prior to September 19, 1996 and the amount of Buyer or any other Person, relating to the Focus Factor Business on and such customer rebates earned through such date. Within 45 business days after the Closing Date, whether pursuant Seller will provide to an agreementBuyer a revised Schedule 1.1(c) to reflect the earned customer rebates as of the Closing Date based on total sales prior to the Closing Date by Seller to such customer (with respect to each such customer, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of "Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in 's Pre-Closing Sales") during the Assumed Liabilitiescurrent program period set forth opposite such customer's name on Schedule 1.1(c) (such customer's "Program Period").

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date; (ii) accounts payable, advance payments by Subscribers (as defined in Section 2.16), accrued expenses, all deferred revenues and any other current liability of Seller as of the Closing Date (except the current portion of any bank debt or line of credit to be paid pursuant to Section 1.5) included on Seller's balance sheet, as determined in accordance with a tax accounting basis which fairly and accurately reflects the financial conditions and results of the Seller on a consolidated basis as consistently applied (the "Assumed Current Liabilities"); and (iii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxesSeller's obligations to Subscribers under such Contracts for (A) Subscriber deposits held by Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or otherwise) after the Closing Date ((i), (bii) Taxes payable and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer, DURO, the Buyer resulting from payments made pursuant to Principals and Seller shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon the terms and subject to the conditions (a) Except as set forth in paragraph (b) below, at the Closing Buyer will assume the following liabilities and obligations of Seller which relate to the business of Seller and which are not paid or discharged at or before the Closing: (i) trade payables and accrued and unpaid expenses and Taxes (other than income and payroll-related Taxes and Taxes payable in connection with transactions between Seller and the Canadian Subsidiary) of Seller as of the Closing Date, in each case which have arisen in the ordinary course of Seller's business; provided that Buyer will assume the liabilities under this Agreementsection solely to the extent of such amounts as are properly accrued, reserved and/or recorded in the Final Closing Date Balance Sheet; (ii) all liabilities for and obligations of Seller relating to the Purchased Assets or the business of Seller to be performed after the Closing arising from the Material Contracts, Leases and other contracts and commitments to be assigned to Buyer under Section 2.1(a)(vi), other than liabilities and obligations arising from breaches thereof prior to the Closing; (iii) all employee-related liabilities and obligations with respect to Transferred Employees (i) which relate to matters arising prior to Closing to the extent they are accrued on the Final Closing Date Balance Sheet, or (ii) which relate to matters or events arising from and after the Closing; and (iv) the liability of Seller arising in the normal course of business (i) for returns of goods under warranty or (ii) with respect to end-of-season unsold inventory returns from distributors, resellers or retailers (as set forth on Schedule 2.3(a)(iv)), but solely to the Buyer will assume extent such liability is reserved for in the Final Closing Date Balance Sheet. The liabilities and payobligations herein above listed, performand to be assumed by Buyer, discharge and be responsible for are hereinafter referred to collectively as the "Assumed Liabilities." (b) Notwithstanding the provisions of paragraph (a) above, there are expressly excluded from the Assumed Liabilities the following listed liabilities and obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”all liabilities for Taxes incurred or to be incurred by Seller, except as otherwise specified in Section 2.3(a)(i), ; (ii) the obligations all liabilities and liabilities obligations, whether civil or criminal in nature, arising out of the any actual or alleged violation by Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding of any obligations federal, state or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretolocal law, and rule, regulation, judicial or administrative order, judgment or decree, or governmental permit, license, approval or authorization; (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); providedall liabilities and obligations of Seller arising from a breach by Seller before Closing of any contract or commitment, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxesMaterial Contracts and Leases or other agreements; (iv) all liabilities and obligations arising under any contract or commitment, including, without limitation, Material Contracts and Leases, if the rights of Seller are, for any reason, not transferred to, or the benefits thereunder are not otherwise made available to, Buyer at the Closing; (v) any liability or obligation in respect of severance or separation pay or allowances for U.S. employees of Seller who are not Transferred Employees; (vi) any liability or obligation related to any multiemployer plan (within the meaning of Section 3(37) of ERISA) or the Frozen Plans; (vii) any liability or obligation under the employment or severance agreements between Seller and Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx identified on Schedule 2.3(b)(vii); (viii) any legal, accounting or other professional fees incurred by Seller in connection with the transactions contemplated hereby; and (bix) Taxes payable any other liability or obligation not expressly assumed by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwiseSection 2.3(a). Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.2.4

Assumed Liabilities. Upon the terms and Buyer shall not assume, shall not take subject to the conditions set forth and shall not in this Agreementany way be liable for, from and after the Closingany liabilities or obligations of any kind or nature, the Buyer will assume and paywhether absolute, performcontingent, discharge and be responsible accrued, known or unknown, of Seller or any Affiliate of Seller except for the following obligations liabilities which Buyer shall assume: (a) the trade and liabilities accounts payables of the Seller: Business incurred in the Ordinary Course before the Closing Date but not paid by Seller or Buyer and set forth on Schedule 2.2; (ib) the accounts payable contractual obligations of the Seller set forth on Schedule 2.4(i) 2.2 incurred before the Closing Date which relate to the operation of the Business; (the “Accounts Payable”), (iic) the obligations Assumed Contracts, Assumed Leases, Assumed Real Estate Lease and liabilities Assumed Loans, including severance payments, if any, to the employees of the Seller under the Assigned Contracts incurred Business; and (d) all liabilities and obligations arising on or after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior with respect to the Closing Date) which obligations operation of the Business by Buyer. Buyer is fully and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretosolely responsible to repay all of the Assumed Loans, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, Buyer hereby discharges and forever holds Seller harmless from any obligation with respect to the Assumed Liabilities Loans. Notwithstanding anything in this Agreement to the Contrary, Buyer shall not include be responsible for any obligations liability or liabilities claim under this Agreement for which Seller purchased insurance and such insurance defense or coverage exists and is not declined, Seller shall cooperate fully in notifying its insurance carrier of any such liability or claim. In addition, Buyer shall not be responsible for the payment of any federal, state, or local taxes, including withholding taxes, or any interest or penalties associated therewith, that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (includingoriginally due from November 7, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after 2003 through the Closing Date, whether pursuant to an agreementincluding all taxes, by operation law or transferee or successor liability, or otherwise. Seller shall retainpenalties, and Buyer shall not assume, any liability interest associated with the notice issued by the Indiana Department of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in Revenue before the Assumed LiabilitiesClosing Date.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after On the Closing Date, whether the Buyer and the Sellers shall enter into the Assignment and Assumption Agreement, pursuant to an agreementwhich, by operation law or transferee or successor liabilityamong other things, or otherwise. Seller shall retain, and the Buyer shall not assumeassume and agree to discharge, any liability when due, all of Sellerthe liabilities and obligations of the Sellers, direct or indirect, known or unknown, absolute or contingent, not expressly which arise and are attributable to the period after the Closing Date and relate solely to the Purchased Assets or which arose or relate to the period on or prior to the Closing Date and are specifically referred to in this Section 2.3(a), other than Excluded Liabilities, in accordance with the respective terms and subject to the respective conditions thereof. Without limitation of the foregoing, the following liabilities and obligations shall be included in the Assumed Liabilities: (i) all liabilities and obligations of the Sellers, to the extent and only to the extent arising and attributable to the period after the Closing Date, under (a) the Sellers' Agreements and the real property leases comprising a part of the Purchased Assets in accordance with the terms thereof, (b) the Permits and Environmental Permits that are transferred to Buyer and (c) the contracts, leases and other agreements entered into by the Sellers with respect to the Purchased Assets after the date hereof in the ordinary course of business and consistent with the terms of this Agreement (including, without limitation, agreements with respect to liabilities for real or personal property Taxes on any of the Purchased Assets entered into by any Seller and any local government and in all cases involving agreements requiring Buyer's consent under Section 7.1, solely such agreements entered into with the prior written consent of Buyer); provided that Assumed Liabilities shall not include liabilities and obligations to the extent such liabilities and obligations, but for a breach or default by either of the Sellers, would have been paid, performed or otherwise discharged specifically by their terms or the terms hereof on or prior to the Closing Date or to the extent the same arise out of any such breach or default; (ii) all liabilities and obligations in respect of Taxes for which the Buyer is liable pursuant to Section 7.7; (iii) any liabilities and obligations associated with the Purchased Assets for which the Buyer has indemnified the Sellers pursuant to Section 9.1; (iv) all liabilities and obligations with respect to the Transferred Employees for which the Buyer is responsible pursuant to Section 7.9; (v) any liability, obligation or responsibilities under or related to former, current or future Environmental Laws, Environmental Matters or the common law, whether such liability or obligation or responsibility is known or unknown, contingent or accrued, arising as a result of or in connection with (a) any violation or alleged violation of Environmental Laws with respect to the ownership or operation of the Purchased Assets after the Closing Date; (b) compliance with applicable Environmental Laws with respect to the ownership or operation of the Purchased Assets after the Closing Date; (c) loss of life, injury to persons or property or damage to natural resources caused (or allegedly caused) by the presence or Release of Hazardous Substances at, on, in, under, adjacent to, or migrating from the Purchased Assets after the Closing Date, including, but not limited to, Hazardous Substances contained in building materials at the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or adjacent to the Purchased Assets; (d) loss of life, injury to persons or property or damage to natural resources caused (or allegedly caused) by the offsite disposal, storage, transportation, discharge, Release or recycling of Hazardous Substances in connection with the ownership or operation of the Purchased Assets after the Closing Date; (e) the investigation and/or remediation of Hazardous Substances that have been Released at, on, in, under, adjacent to, or migrating from the Purchased Assets after the Closing Date, including, but not limited to, Hazardous Substances contained in building materials at the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at the Purchased Assets; (f) the investigation and/or remediation of Hazardous Substances that are disposed, stored, transported, discharged, Released or recycled at any off-site location after the Closing Date in connection with the ownership or operation of the Purchased Assets; and (g) any violation or alleged violation of Environmental Law, and any loss of life, injury to persons or property or damage to natural resources caused (or allegedly caused) by (i) negligent acts or omissions by the Buyer at any of the Purchased Assets; (ii) acts or omissions by the Buyer at any of the Purchased Assets which cause a condition not in violation of Environmental Law or not in need of remediation under Environmental Law on or prior to the Closing Date to be in violation of Environmental Law or in need of remediation under Environmental Law (including, without limitation, the Release or destabilization of Hazardous Substances which are in a stable or contained state and are in compliance with all applicable Environmental Laws); or (iii) negligent acts or omissions by the Buyer at any of the Purchased Assets after the Closing Date that exacerbate or aggravate any condition in violation of Environmental Law or in need of remediation under Environmental Law on the Closing Date, to the extent of any such negligent exacerbation or aggravation; provided, that the mere discovery or failure to discover by the Buyer of a violation of Environmental Law or a condition in need of remediation under Environmental Law which violation or condition existed on the Closing Date, in and of itself shall not be included in this clause (g); provided, that nothing set forth in this Section 2.3(a)(v) shall require the Buyer to assume any liabilities that are described in Section 2.4(v) or 2.4(vi); (vi) all liabilities incurred by any of the Sellers for payment of Maintenance Expenditures and Capital Expenditures directly related to the Purchased Assets to the extent not included in the Maintenance and Capital Expenditures Amount and agreed to be reimbursed in writing by Buyer; and (vii) with respect to the Purchased Assets, (a) any Tax that may be imposed by any state or local government on the ownership, sale, operation, or use of the Purchased Assets with respect to the periods after the Closing Date, including real or personal property Taxes except as otherwise provided in Section 7.7, (b) any software license transfer, reissuance or similar costs relating to any of the Purchased Assets and (c) Permitted Encumbrances which are permitted by definition to survive the Closing Date. (b) All of the foregoing liabilities and obligations to be assumed by the Buyer under Section 2.3(a) (excluding any Excluded Liabilities) are referred to herein as the "Assumed Liabilities." None of the liabilities and obligations of the Sellers assumed by Buyer are intended to be expanded, increased, broadened or enlarged as to rights or remedies of third parties against the Buyer as compared to such rights or remedies which such parties would have had against the Sellers had the transactions contemplated by this Agreement not taken place. (c) Subject to Section 9.2(f), the parties agree and acknowledge that after the Closing Date the Buyer shall be entitled exclusively to control any litigation, administrative or regulatory proceeding or investigation arising out of or related to any Assumed Liabilities and the Sellers agree to promptly notify the Buyer of the institution or commencement of any of the foregoing and to cooperate fully with the Buyer in connection therewith (provided that Sellers' cooperation need not include the payment of money or any other financial accommodation). 2.4

Assumed Liabilities. Upon It is the terms general intent of the Parties that Buyer shall assume ONLY the trade accounts payable (excepting herefrom Intercompany trade accounts payable); accrued vacation salaries and subject to wages of the conditions Seller as reflected in the Business Financial Statements and after the date of the Business Financial Statements through the date of the Closing herein’ and, the leases expressly listed on Schedule 6.13, all as set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on attached Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 4.2 (the “Assumed Liabilities”); provided, howeverwhich is incorporated herein by reference. Any accounts payable not listed on Schedule 4.2, shall not be assumed by Buyer. Buyer may, but shall not be obligated to, assume any liability not set forth in Schedule 4.2 and in such event, payment of such liability shall be an offset against the Hold Back and covered by the Seller’s indemnification obligations under this Agreement. Any liability of Seller that is not expressly assumed by Buyer herein shall constitute a retained liability of Seller (“Seller Retained Liabilities”). Seller Retained Liabilities shall include, but without limitation, the Assumed Liabilities shall following: incurred or accruing prior to the Closing: warranty liability for services provided; liability for taxes, including, but not include any obligations or liabilities that were limited to, property taxes; litigation claims, including, but not incurred in limited to, patent, trademark, trade name and/or copyright infringement; liability for federal and/or state security laws; liability for claims of employees of the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or Business, including, but not limited to, claims arising out of violations of federal or state law governing the Focus Factor employment relationship and environmental and health and safety laws and regulations or breach of contract, except as otherwise assumed hereunder; liability for any severance obligations of employees, including, but not limited to, any payable pursuant to any employee benefit plan and/or expense account, except as otherwise assumed hereunder. Buyer shall be liable for all Indemnified Claims (as defined under Section 10.1, below) attributable to any event occurring after the Closing relating to the operation by Buyer of the Business accruing on from and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.Closing,

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after At the Closing, except as described in ------------------- this Section 1.2, the Buyer will Purchaser shall assume and agree to pay, performsatisfy, perform and discharge and be responsible for as the following obligations and liabilities of the Seller: same shall become due (i) the all accounts payable of to the extent they relate to the Business and are listed on a schedule prepared by the Seller set forth on Schedule 2.4(i) (and delivered to the “Accounts Payable”)Purchaser prior to the Closing Date, and (ii) the obligations and all liabilities resulting from or arising out of the Seller operation of the Business by the Purchaser, or the Purchaser's ownership, operation or use of the Acquired Assets, or the actions or omissions of the Purchaser, its Affiliates, agents, contractors or subcontractors in connection therewith, following the Closing, including but not limited to liabilities under the Assigned Contracts incurred and the Real Estate Leases, in each case arising after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior the "Assumed Liabilities"), pursuant to an Assumption Agreement substantially in the form of Exhibit 1.2 hereto. Notwithstanding anything contained in this Agreement to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, howevercontrary, the Assumed Liabilities Purchaser shall not include assume or otherwise be responsible at any obligations time for any liability, obligation, debt or liabilities that were commitment of the Seller, including, but not incurred in limited to, any liabilities, obligations, debts or commitments of the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or Seller incident to, arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant or incurred with respect to this AgreementAgreement and the transactions contemplated hereby, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in than the Assumed Liabilities.. Without limiting the foregoing, the following liabilities shall be retained by the Seller (the "Excluded Liabilities"):

Assumed Liabilities. (a) Upon the terms and subject to the conditions set forth in of this Agreement, from and after at the Closing, the Buyer will Purchaser agrees to assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) all liabilities arising after the accounts payable Closing Date with respect to events or periods occurring after the Closing Date, in respect of Seller set forth on Schedule 2.4(ior pursuant to the Purchased Assets which are transferred and assigned to Purchaser (or its designee) (at the “Accounts Payable”)Closing, (ii) the all liabilities listed on Schedule 2.3 attached hereto (which Schedule shall be updated at Closing, with respect to accrued liabilities, in accordance with Section 6.1(i)), (iii) all capital lease obligations and liabilities listed on Schedule 2.3 attached hereto, (iv) all trade accounts payable of the Seller under incurred in the Assigned Contracts incurred after ordinary course of business listed on Schedule 2.3 attached hereto (which shall be updated at Closing in accordance with Section 6.1(i)); and (v) the Substitute Transamerica Loan, which Purchaser agrees to pay in full at the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior by wire transfer to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoaccount designated by Silicon Valley Bank (collectively, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, that notwithstanding the foregoing, the Assumed Liabilities shall not include any obligations liabilities or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include indebtedness owed by Seller to any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability Affiliate of Seller, direct (including the holders of the Bridge Notes) or indirectany accrued interest thereon, known and any liabilities or unknownobligations in respect of Benefit Plans (other than accrued but unpaid paid time off for the Transferred Employees, absolute or contingentas set forth on Schedule 2.3, not expressly included in the and severance payable to Transitional Employees terminated by Purchaser, as set forth on Schedule 3.30, which shall be deemed to be an Assumed Liability) which shall be deemed to be Excluded Liabilities.

Assumed Liabilities. Upon the terms and Buyer shall not assume, shall not take subject to and shall not in any way be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, of Seller or any Affiliate of Seller except for: (a) the conditions trade and accounts payables of the Business incurred before the Closing Date but not paid by Seller in the Ordinary Course and set forth in this Agreement, from on Schedule 2.2; (b) the loans payable incurred before the Closing Date which relate to the equipment and after the Closing, the Buyer will assume primary systems and pay, perform, discharge and be responsible for the following obligations and liabilities line of credit of the Seller: Business and are on the balance sheet of the Seller delivered pursuant to Section 4.3.1 of this Agreement and set forth on Schedule 2.2; (ic) the accounts payable contractual obligations of the Seller set forth on Schedule 2.4(i) (2.2 incurred before the “Accounts Payable”), (ii) Closing Date which relate to the obligations and liabilities operation of the Seller under the Assigned Contracts incurred Business; and (d) all liabilities and obligations arising on or after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior with respect to the Closing Date) which obligations Assumed Contracts, Assumed Leases, Assumed Real Estate Lease and liabilities being assumed under such certain Assigned Contracts are specifically Assumed Loans. The Parties acknowledge that although it is their intent to make Buyer fully and solely responsible to repay all of the loans set forth on Schedule 2.4(ii) hereto, 4.25 and (iii) to discharge and hold the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, howeverDuncans and Seller harmless from any further obligation with respect to those loans, the Assumed Liabilities shall not include any lenders that provided the loans are unwilling to release the Duncans and Seller from their Guaranties and other obligations or liabilities that were not incurred in under the ordinary course of businessloans. Assumed Liabilities shall include any liabilities for (a) Taxes relating Accordingly, Buyer is delivering to or arising out of Seller and the Focus Factor Business accruing on and after Duncans at the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesBank Letter.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein, from and after the ClosingSeller shall have no further liability or responsibility for or with respect to, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date; (ii) accounts payable, advance payments by Subscribers, accrued expenses, all deferred revenues, ordinary recurring operating expenses, and any other current liability of Seller as of the Closing Date (except the current portion of any bank debt or line of credit to be paid pursuant to Section 1.5) included on Seller's balance sheet, as determined in accordance with GAAP consistently applied and de minimis ordinary recurring operating expenses that are not included on Seller's balance sheet (the "Assumed Current Liabilities"); and (iii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxesSeller's obligations to Subscribers (as defined in Section 2.16) under such Contracts for (A) Subscriber deposits held by Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or otherwise) after the Closing Date ((i), (bii) Taxes payable and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by the Buyer resulting from payments made pursuant to hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer and Seller shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business on and after the Closing; (ii) those current liabilities and accrued expenses of Seller as of the Closing Date consisting of (A) accounts payable arising in the ordinary course of business and (B) unearned revenues (the "Assumed Current Liabilities and Accrued Expenses") and (iii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts and the Authorizations (as defined in Section 2.13), including, without limitation, sales taxesSeller's obligations to Subscribers (as defined in Section 2.16) under such Contracts for (A) Subscriber deposits held by Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or otherwise) after the Closing Date ((i), (bii) Taxes payable and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by the Buyer resulting from payments made pursuant to hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer and Seller shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon On the terms and subject to the conditions set forth in this Agreement, from and after at the Closing, the Buyer will Purchaser shall assume and paybecome responsible for, and perform, discharge and be responsible for pay when due, the following obligations and liabilities Liabilities of the Seller: Sellers (iwhich, except as contemplated by clause (c) of this Section 2.1.3, shall not include any Liabilities resulting from the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)acquisition, (ii) the obligations and liabilities ownership, use, operation or maintenance of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising Assets prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoClosing), and (iiiwhich, for the avoidance of doubt, shall not include any Excluded Liabilities) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, ): all Liabilities with respect to the Assumed Liabilities shall not include any obligations ownership or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out exploitation of the Focus Factor Business accruing on and after Assets by or through the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and Purchaser arising after the Closing Date, whether including all such Liabilities related to Actions or claims brought against the Assets to the extent such Actions or claims relate to post-Closing ownership or exploitation by or through the Purchaser of the Assets, and all maintenance fees and prosecution costs related to the Transferred Patents associated with the ownership or exploitation by or through the Purchaser of the Assets, or otherwise arising by or through the Purchaser, after the Closing Date; all Liabilities arising from or in connection with the performance of the Assigned Contracts (or breach thereof) after the Closing Date or constituting Cure Costs payable by the Purchaser pursuant to an agreementSection 2.1.7 (subject to the limits set forth in Section 2.1.7); and all Liabilities for any Tax that the Purchaser bears under Article VI (for the avoidance of doubt, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesother than pursuant to Section 6.9(a)).; and

Assumed Liabilities. Upon Subject to (i) the occurrence of the WSOD/EJV Option Closing, and (ii) the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date Section 9 (including, without limitation, sales taxesthe terms and conditions set forth in Section 9.8 and Section 9.9 hereof), at the WSOD/EJV Option Closing, Purchaser shall assume from Sellers and thereafter pay, perform, or discharge in accordance with their terms and hold Sellers harmless in respect of, all (bi) Taxes payable payables, obligations and liabilities with respect to, arising out of, or associated with the ownership, possession or use of the WSOD/EJV Assets arising on or after the WSOD/EJV Option Closing; (ii) obligations that arise or which by their terms are to be observed, paid, discharged or performed, as the Buyer resulting from payments made case may be, on or after the WSOD/EJV Option Closing Date under the WSOD/EJV Designated Contracts that the Purchaser has elected to assume pursuant to Section 9.8 hereof and for such goods and services as are provided in the ordinary course to the WSOD/EJV Business on or subsequent to the WSOD/EJV Option Closing Date; (iii) those liabilities listed on Schedule 9.10 hereto; (iv) the Purchaser’s share of prorated liabilities of Sellers pursuant to Section 9.15 hereof; and (v) liabilities and obligations set forth in Section 9.17. The liabilities to be assumed pursuant to this Agreement, (c) one-half of Section 9 shall be referred to herein as the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the “WSOD/EJV Assumed Liabilities.”. 56 9.11

Assumed Liabilities. Upon Except for the terms and subject to Assumed Liabilities, Eton shall not, by virtue of its purchase of the conditions set forth Purchased Assets, assume or become responsible for any Liabilities of Eyemax or any other Person in connection with this Restated Agreement. As previously agreed by the parties, from and after as of the Closing, the Buyer will Eton shall assume and pay, perform, and discharge any and be responsible for all Liabilities of Eyemax under the following [* * *] Agreement arising prior to, during, and relating to, the period on or after the Closing, including any Liabilities imposed by applicable Law with respect to obligations and liabilities of under the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) [* * *] Agreement (the “Accounts Payable[* * *] Liabilities”). Further, (ii) the obligations Eton shall assume and liabilities pay, perform, and discharge any and all Liabilities of the Seller Eyemax under the Assigned Contracts incurred Eyemax Registrations, solely relating to the Territory arising prior to, during, and relating to, the period on or after the Closing Date (collectively, with the [* * *] Liabilities and specifically excluding any obligations or liabilities Liabilities of Eton under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoSection 5.1, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, that the Assumed Liabilities shall not include exclude any obligations and all Liabilities resulting from any breach of or liabilities that were not incurred in non-compliance with the ordinary course [* * *] Agreement or Eyemax Registrations by Eyemax or any of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating its Affiliates on or prior to or arising out the later of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by or the Buyer resulting from payments made pursuant to this Agreement, (c) one-half date of the Transfer Taxes, if applicable, and (d) Taxes transfer of Buyer such Purchased Assets. All Liabilities of Eyemax or any other Personof its Affiliates not specifically described in this Section 2.2 (collectively, relating to with the Focus Factor Business on Liabilities of Eyemax under Section 5.1, the “Excluded Liabilities”) shall not be assumed by Eton and shall remain the sole obligation and responsibility of Eyemax and its Affiliates after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesClosing.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from At and after the Closing, the Buyer will shall assume and timely pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred perform when due those Liabilities attributable to periods after the Closing Date (and specifically excluding any obligations under or liabilities under and breaches thereof arising prior with respect to the Closing Date) which obligations Licenses, Assumed Contracts and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoother Assets (collectively, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however. All Liabilities not expressly assumed by Buyer hereunder are collectively referred to herein as “Non-Assumed Liabilities” and shall remain and be the obligations and liabilities solely of Seller. Without limiting the generality of the foregoing, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Non-Assumed Liabilities shall include the following: (i) any liabilities Liabilities arising from or related to the ownership, operation or use of the Business and/or the Assets prior to Closing, (ii) all Liabilities relating to any of the Excluded Assets, (iii) any debts, obligations or other Liabilities owing from Seller or any of its Affiliates to Seller or any of its Affiliates, (iv) any Liability of Seller or any Affiliate of Seller for (a) Taxes relating to periods prior to Closing, whether or not shown on a Tax Return, (v) any Liability for Taxes payable with respect to Seller’s transfer of the Assets to Buyer and Seller’s consummation of the other transactions contemplated by this Agreement, except to the extent of Buyer’ obligation to pay such Liability under Section 12.2 of this Agreement; (vi) any claims or other Liabilities of Seller arising out of the operation of the Business prior to Closing under or relating to pre-Closing violations of Environmental Laws or pre-Closing releases of Hazardous Substances, (vii) Liabilities under any Non-Assumed Contract, except to the extent of Buyer’s obligation to pay such Liability under Section 5.2(c) of this Agreement; (viii) any Liability to or in respect of, or arising out of or in connection with, the Focus Factor Business accruing on employment or cessation of employment by Seller of, any Employees or former Employees of Seller, including (A) any employment or consulting agreement, whether or not written, between Seller and after the Closing Date (including, without limitation, sales taxes)any person, (bB) Taxes payable by the Buyer resulting from payments made pursuant to this Agreementany Liability under any Compensation Arrangement and any Employee Plan, (cC) one-half any claim of an unfair labor practice or grievance or any claim under any unemployment compensation, employment standards, pay equity or worker’s compensation law or regulation or under any federal, state or provincial employment discrimination law or regulation, which shall have been asserted by any Employee or former Employee based on acts or omissions which occurred during the Transfer Taxesperiod of or relating to such Employee’s employment by Seller, if applicable, and (d) Taxes of whether or not such Employee is hired by Buyer or any other Personof its Affiliates, (D) any Liability relating to the Focus Factor Business on and payroll, vacation, personal day or sick pay for any current or former employee, director, officer, consultant or independent contractor of Seller (except with respect to liabilities for any Employee employed by Buyer for any period after the Closing Date), whether pursuant (E) with respect to an any actual or alleged agreements or promises to current or former employees, directors, officers, consultants or independent contractors regarding stock options, equity or equity based compensation plans, programs or arrangements maintained by Seller or any of its Affiliates, and (F) any Liability arising out of or relating to any stay bonus, severance plan or arrangement, special waiting bonus or special retention plan or agreement, (ix) any Liabilities for legal, accounting or broker’s fees incurred by operation law or transferee or successor liability, or otherwise. Seller shall retainand its Affiliates in connection with this Agreement and the consummation of the transactions contemplated hereby, and Buyer shall not assume, any liability (x) all Liabilities of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesSeller arising under this Agreement.

Assumed Liabilities. Upon As of the terms Closing Date (as defined below), Buyer shall undertake, assume, and subject agree to perform, and otherwise pay, satisfy and discharge as of the Closing (a) all accrued liabilities (other than taxes), customer deposits and accounts payable of Seller, in each case, as set forth on Schedule 1.2(a), and (b), those obligations, duties and liabilities of Seller with respect to the conditions set forth Assumed Contracts (as defined below), licenses and other arrangements included in, the Purchased Assets, in this Agreement, each case only to the extent arising from and after the ClosingClosing Date and not arising from or relating to any breach, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of default or failure by the Seller under to perform any covenants or obligations required to be performed by the Assigned Contracts incurred after Seller of such Assumed Contracts, licenses and other arrangements included in the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising Purchased Assets prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 Date (the “Assumed Liabilities”); provided, however, that the Assumed Liabilities shall include no other liability of Seller of any kind or nature whatsoever and shall not include any obligations or liabilities that were not incurred in the ordinary course of businessExcluded Labilities (as defined below). “Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out Contracts” means all of the Focus Factor Business accruing on and after the Closing Date Contracts (including, without limitation, sales taxes)non-competition agreements by and between any Seller and any employee, (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, consultant or other person and (d) Taxes of Buyer or any other Personengagement letters, contract extensions, rebids, existing proposals, bids, opportunities pursued, purchase orders and any sales contracts in the pipeline) used in conducting or relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesBusiness.

Assumed Liabilities. Upon Subject to the terms and subject to the conditions set forth in of this Agreement, from and after at the Closing, the Buyer will Parent Purchaser and Subsidiary Purchaser shall accept, assume and agree to pay, perform, perform or otherwise discharge and be responsible for the following obligations liable for, and liabilities Seller shall assign to Parent Purchaser and Subsidiary Purchaser all of the Seller: debts, liabilities, payables, commitments and obligations of any kind or nature whatsoever under the Assumed Contracts and Parent Purchaser’s and Subsidiary Purchaser’s ownership and operation of the applicable Transferred Assets following the Closing, but only if and to the extent (i) relating to, or arising out of, facts, conditions, circumstances or events first occurring after the accounts payable date such Assumed Contract or Transferred Asset is effectively assigned to Parent Purchaser or Subsidiary Purchaser, as the case may be; and (ii) not relating to (A) any breach or nonperformance by Seller before the Closing; (B) any act or omission by Seller before or after the Closing (other than any act or omission by Seller taken or not taken, as applicable, at the request of Parent Purchaser or Subsidiary Purchaser); or (C) any fact, condition, circumstance or event of the Business (including the Transferred Assets) which existed or occurred prior to the Closing (collectively referred to as the “Assumed Liabilities” and individually referred to as an “Assumed Liability”). Seller hereby acknowledges that Parent Purchaser is assuming the Assumed Contracts listed under the heading “Parent Purchaser Assumed Contracts” and Subsidiary Purchaser is assuming the Assumed Contracts listed under the heading “Subsidiary Purchaser Assumed Contracts”, each as set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii1.1(a) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon Buyer agrees to (A) assume, perform and discharge all post-Closing liabilities due under the terms Assumed Real Property Leases, the Assumed Contracts and subject Assumed Licenses and otherwise related to the conditions set forth in this Agreement, from Purchased Assets arising on and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date and (B) cure, at Buyer's expense, any and specifically excluding any obligations or liabilities all monetary defaults existing under each Assumed Real Property Lease, Assumed License, Assumed Insurance Policy and breaches thereof arising prior Assumed Contract included within the Purchased Assets (collectively the "Assigned Contracts") to the Closing Date) which obligations and liabilities being assumed under extent required for Sellers to assume such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoin the Chapter 11 Cases, provided, however, that Buyer shall not be required to pay, and shall have no liability for, any amounts to cure the Assigned Contracts in excess of the total amount of cash and cash equivalents transferred to Buyer under Section 1.01(m) above (iii) collectively, the Liabilities set forth on Schedule 5.8 (foregoing shall be referred to as the “"Assumed Liabilities”"); provided, however, any other provision of this Agreement notwithstanding, that the Assumed Liabilities Parties agree and acknowledge that MTVP (First Virtual Investments), LLC, Silicon Valley Bank, Huron Consulting Services LLC and Morrison & Foerster LLP shall not include in any obligations way or liabilities that were not incurred in the ordinary course of business. at any time assume or xxxxxxxse xx xxxxxated for Assumed Liabilities Liabilities, which shall include only be assumed by Buyer's Assignee, or otherwise be liable for any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on debts of Sellers, and after Huron is not a Buyer for the purposes of this or any other section or provision of this Agreement. On the Closing Date or, as regards a particular Assigned Contract, on such later date as Buyer pays the monetary cure for such Assigned Contract, Sellers shall (includingi) cure, without limitationat Sellers' sole expense, sales taxesany and all non-monetary defaults existing under each Purchased Asset, and Assigned Contract to the extent required for Sellers to assume such Assigned Contracts in the Chapter 11 Cases, (ii) assume each Assigned Contract in the Chapter 11 Cases to the extent necessary to transfer such Assigned Contracts to Buyer, and (iii) subject to Buyer providing adequate assurance of performance to the counterparty thereto to the extent required by the Bankruptcy Court, assign such Assigned Contracts to Buyer pursuant to an order of the Bankruptcy Court (which may be the Sale Order or one or more other orders that are no less favorable to Buyer than the provisions of the Sale Order). Effective upon and concurrently with such assignment(s), (b) Taxes payable by the Buyer resulting from payments made shall assume each Assigned Contract assigned to it pursuant to this Agreement, (c) one-half Section 1.03 by executing and delivering to Sellers the Assignment and Assumption of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Contracts attached hereto as Exhibit F. Buyer shall not assume, assume any liability liabilities or obligations of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in Sellers except those specifically assumed by Buyer pursuant to the Assumed Liabilitiesprovisions of this Section 1.03.

Assumed Liabilities. Upon At the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: Closing (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”as hereinafter defined), Newco shall only assume (iia) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and General Partner or Partnerships specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth described on Schedule 2.4(ii) 1.6 hereto, and (iiib) those trade payables on open account incurred by the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred Partnerships in the ordinary course of businessthe Partnerships' business from unrelated parties and (c) that certain note dated June 1, 1997 in the original principal amount of $100,000, including interest thereon at the rate of 12% per annum arising out of a loan by the Limited Partner to the General Partner (the "Limited Partners' Note). Assumed Liabilities Such limited assumption shall include be pursuant to that certain general conveyance, assignment and transfer of assets and assumption of liabilities, in the form attached hereto as Exhibit B (the "Assignment and Assumption Agreement") to be executed by the parties hereto at the Closing, effective as of the Effective Time. With respect to any liabilities lease or other contract obligations reflected on Schedule 1.6 or otherwise described in the first sentence of this Section, it is agreed that Newco will have no responsibility whatsoever for any breaches or defaults which occurred prior to the Effective Time. Except for (a) Taxes relating to or arising out of the Focus Factor Business accruing on those liabilities and after the Closing Date (including, without limitation, sales taxes), obligations specifically assumed by Newco as provided above and (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreementobligations of makers or guarantors on the notes described on Schedule 1.6, (c) one-half any and all debts, liabilities and obligations of the Transfer TaxesPartnerships, if applicable, and (d) Taxes of Buyer or the General Partner and/or any other Person, relating to the Focus Factor Business on and after the Closing Dateparties hereto, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute absolute, contingent or contingentotherwise (including, but not expressly included limited to, federal, state and local taxes, any sales taxes, use taxes and property taxes, any taxes arising from the transactions contemplated by this Agreement and any liabilities arising from any litigation or civil, criminal or regulatory proceeding involving or related to the parties hereto or their business) shall remain the sole responsibility of the party or parties responsible therefor prior to the execution of this Agreement. At the Closing, the Limited Partners' Note (including interest thereon) will be paid in full by Newco, or funds sufficient in an amount to fully pay the Assumed LiabilitiesLimited Partners' Note will be placed in escrow with an escrow agent mutually acceptable to APS and the Limited Partner, and such funds will be used to pay in full the Limited Partners' Note within three (3) days from the Closing Date.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject assume, and shall become and be fully liable and responsible for, and except as expressly set forth herein, Seller shall have no further liability or responsibility for or with respect to, only the following: (i) liabilities and obligations arising out of or related to events occurring after the Closing to the conditions extent such liabilities and obligations arise out of or relate to Buyer’s ownership of the Sale Assets or Buyer’s operation of the Business after the Closing (except to the extent arising out of or in connection with a breach by Seller of any of its representations and warranties set forth in this Agreement, from ); and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following (ii) obligations and liabilities of Seller which are to be performed after the Closing and which arise under or relate to the Assumed Contracts (other than (I) as a result of any act or omission occurring, or state of facts existing, with respect to any such agreements (except the fact of Seller: ’s entry into such agreements) prior to Closing) and (iII) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the those obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior which are not materially related to the Closing Date) which obligations and liabilities being assumed Business even if they arise under such certain Assigned or relate to the Contracts are specifically set forth on Schedule 2.4(ii) hereto(collectively, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the . The Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities liability to fulfill contracts for (a) Taxes relating all job listings and subscriptions to or arising out of products and services on the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable Websites sold by the Buyer resulting from payments made pursuant Seller prior to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant all of which liabilities are set forth on Schedule 1.3(a) (such liabilities, the “Fulfillment Liability”), including the liability to an agreement, pay refunds to any subscribers who cancel (for whatever reason) their subscriptions to any of the Website’s products and services sold by operation law or transferee or successor liability, or otherwiseSeller. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.Salem Church Products

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreementhereof, from and after as of the Closing, the Seller will assign and transfer to Buyer, and Buyer will assume accept and payassume, performand thereafter shall fully perform and discharge, discharge on a timely basis and be responsible for in accordance with their respective terms and conditions, only (a) the following liabilities, obligations and liabilities commitments of Seller listed on Schedule 1.4 hereto (including the Seller: Transferred Contracts) but only to the extent such obligations (i) the accounts payable do not arise from or relate to any breach by Seller of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), any provision of any of such Transferred Contracts and (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding do not arise from or relate to any obligations event, circumstance or liabilities under and breaches thereof arising condition occuring or existing on or prior to the Closing DateDate that, with notice or lapse of time, would constitute or result in a breach of any of such Transferred Contracts, (b) which any warranty obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on of Seller for any In Scope Products sold, by Seller to any customers or distributors prior to Closing, including but not limited to, those warranty obligations listed in Schedule 2.4(ii) 1.4 hereto, and (iiic) the Liabilities set forth existing software maintenance obligations of Seller listed in Schedule 1.4 with respect to software licensed, by Seller prior to Closing, in connection with any In Scope Product, it being understood, in the case of (a) and (b) above, and subject to Section 4.5, that Buyer shall perform such warranty or maintenance service obligations on Schedule 5.8 behalf of and for Seller and Buyer will have no direct obligation or liability to Seller’s customers or distributors on account of such warranty or maintance obligations of the Seller or its Affiliates. (collectively, subsections (a), (b), (c) referred to as the “Assumed Liabilities”); provided, however, . Except for the Assumed Liabilities shall Liabilities, Buyer is not include assuming any obligations liability, obligation or liabilities that were not incurred in the ordinary course commitment of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating nature of Seller related to Seller’s or arising out its Affiliates’ operations or sales of the Focus Factor Business accruing on and after In Scope Product prior to the Closing Date (includingdate, without limitationand any such liability, sales taxes), (b) Taxes payable by obligation or commitment of the Buyer resulting from payments made pursuant to Seller or its Affiliates shall be an Excluded Liability. For purposes of this Agreement, all liabilities of Seller and any of its Affiliates not expressly listed in the definition of Assumed Liabilities, or expressly excluded from the definition of Assumed Liabilities under subsections (ci) one-half of the Transfer Taxes, if applicable, and (dii) Taxes of Buyer or any other Personthis Section 1.4, relating are referred to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed as “Excluded Liabilities.”

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from At and after the Closing, the Buyer will shall assume and timely pay, perform, discharge and be responsible for perform all Liabilities arising from the following obligations and liabilities ownership or holding of the Seller: (i) Assets, including the accounts payable of Seller set forth Licenses and the Assumed Contracts, that arise or accrue on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred or after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoAdjustment Time, and any current Liabilities included in the Adjustments for which Buyer shall have received the benefit of an adjustment or proration as of Closing (iii) the Liabilities set forth on Schedule 5.8 (collectively, the “Assumed Liabilities”); provided, however, . All Liabilities not expressly assumed by Buyer are collectively referred to herein as “Non-Assumed Liabilities” and shall remain and be the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability solely of Seller, direct or indirect, known or unknown, absolute or contingent, including (i) any Liabilities under any Contract not expressly included in the Assumed LiabilitiesContracts, (ii) any Liabilities under the Licenses or Assumed Contracts relating to the period prior to the Adjustment Time (including as a result of any default by Seller prior to the Closing Date under any License or Assumed Contract), (iii) any claims or pending Actions relating to the operation of the Station prior to the Adjustment Time, (iv) any Liabilities arising with respect to any of the Excluded Assets, and (v) any other Liabilities arising with respect to the ownership and control of the Assets, the Business and the Station prior to the Adjustment Time (other than any Liabilities included in the Adjustments for which Buyer shall have received the benefit of an adjustment or proration).

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after At the Closing, the Buyer will shall assume and agree to fully pay, performperform or discharge or cause to be fully paid, discharge and be responsible for the following obligations and liabilities of the Seller: performed or discharged when due, (i) only the accounts payable post-Closing Liabilities arising out of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (iiA) the obligations contracts, equipment leases, license agreements, permits and liabilities agreements of or relating to the Business listed on Section 1.3(a)(i)(A) of the Seller under Disclosure Schedule, the Assigned Contracts incurred benefits of which are assigned to Buyer or for which Buyer otherwise receives substantially all of the economic benefits thereof pursuant to this Agreement to the extent, and only to the extent, such obligations accrue after the Closing Date or are expressly assumed by Buyer (the "Fully Acquired Agreements") and specifically excluding any obligations (B) the contracts and agreements of or liabilities under and breaches thereof arising prior relating to the Closing DateBusiness listed on Section 1.3(a)(i)(B) of the Seller Disclosure Schedule, a portion of the benefits of which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoassigned to Buyer or for which Buyer otherwise receives a portion of the economic benefits thereof pursuant to this Agreement to the extent, and (iii) only to the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); providedextent, however, the Assumed Liabilities shall not include any such obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and accrue after the Closing Date or are expressly assumed by Buyer (includingthe "Partially Acquired Agreements," and together with the Fully Acquired Agreements, without limitation, sales taxesthe "Acquired Agreements"), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, ; and (dii) Taxes all Liabilities arising out of Buyer or any other Person, relating to the Focus Factor Business on and (A) Products sold after the Closing DateDate and (B) outstanding open order obligations to vendors for raw materials existing as of the end of the Manufacturing Transition Period (the Liabilities described in clauses (i) and (ii) above, whether pursuant collectively, the "Assumed Liabilities"). Notwithstanding this Section 1.3(a), to an agreementthe extent that any Acquired Agreement is not capable of being sold, by operation law assigned, transferred or transferee conveyed without the authorization, approval, consent or successor liabilitywaiver of any other party thereto, or otherwise. Seller shall retain, and Buyer shall not assume, any liability Buyer's assumption of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesLiabilities with respect to such Acquired Agreement shall only become effective upon such other party's authorization, approval, consent or waiver thereto.

Assumed Liabilities. Upon At the terms and subject to the conditions set forth in this Agreement, from and after the related Closing, the Buyer will Companies shall assume and payagree to discharge those, performand only those, discharge obligations, liabilities and be responsible for the following obligations and liabilities contractual commitments of the SellerSeller accruing after the related Closing that are: (i) the accounts payable of Seller set forth expressly listed on Schedule 2.4(i2.3(a) (to the “Accounts Payable”), extent a consent or approval of the assignment of which is required has been obtained at or prior to the related Closing; and (ii) the obligations and liabilities Accrued Paid Time Off (as defined in Section 2.6) of employees of the Seller under hired by the Assigned Contracts incurred after Buyer Companies at the related Closing Date (such obligations, liabilities and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretocontractual commitments, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”). Notwithstanding the foregoing, the Buyer Companies may, within fourteen (14) days after August 2, 2007, notify the Seller of any additional contracts to be listed on Schedule 2.3(a) that they elect to assume, and Schedule 2.3(a) shall be revised accordingly; provided, however, with respect to the contracts that the Buyer Companies elect not to assume, they shall consult with the Seller within such fourteen (14) day period and advise the Seller of their reason(s) not to assume such contracts. Except for the Assumed Liabilities Liabilities, the Buyer Companies do not and shall not include assume or in any obligations way undertake to pay, perform, satisfy or liabilities that were not incurred in discharge any other liability of the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to Seller existing on the related Closing Date or arising out of the Focus Factor Business accruing on and after the Closing Date (includingany transactions entered into, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Personstate of facts existing, relating prior to the Focus Factor Business on and after the related Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from From and after the ClosingEffective Date, the Buyer will Purchaser shall assume the Royalty Agreement and payall obligations of the Vendor thereunder and shall assume, perform, pay and discharge as and when due and be responsible for the following obligations and liabilities all liabilities, if any, arising out of, under or by virtue of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)Royalty Agreement, (ii) the obligations and liabilities or arising out of, under or by virtue of the Seller under ownership by the Assigned Contracts incurred after Vendor of the Closing Date Purchased Assets, in any such case whether fixed, absolute or contingent (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretocollectively, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided. For greater certainty, howeverany of the Vendor’s rights and liabilities arising out of, concerning or relating to the Assumed Liabilities requirements of Sections 5.2, 5.4 and 5.6 of the Royalty Agreement in relation to the period prior to January 1, 2015 (save and except for rights pursuant to the provisions of Section 6.4) shall remain with the Vendor. The Vendor does hereby covenant and agrees with the Purchaser, as and by way of a post-Closing covenant that shall not include any obligations or liabilities merge on Closing, that were not incurred in it shall: (i) pursuant to the ordinary course provisions of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out Sections 5.2 and 5.4 of the Focus Factor Business accruing Royalty Agreement, in relation to the period prior to January 1, 2015, on demand therefor by the Royalty Payors, duly pay in cash any difference that may be due and after owing by the Closing Date Vendor to the Royalty Payors, together with interest thereon, pursuant to the terms and conditions of such sections, so as to avoid any offset in respect of such difference (includingtogether with interest thereon) as against the next following payment or payments of the Aber Royalty and the DDMI Royalty that shall be the property of the Purchaser; (ii) provide proof (within a reasonable period of time thereafter) of the making of the payment contemplated in Section 9(i); and (iii) keep the Purchaser reasonably informed as to all matters concerning its retention of certain rights and obligations as set forth in Sections 5.2, 5.4 and 5.6 of the Royalty Agreement, and in such regard and without limitation, sales taxes)subject to obtaining the prior written consent of the Royalty Payors, (b) Taxes payable provide to the Purchaser promptly upon receipt, any and all documentation and other information that the Vendor may receive from time to time in connection with such matters, including pursuant to the provisions of Sections 5.6, 6.3 and 6.7 of the Royalty Agreement. The Purchaser does hereby covenant and agrees with the Vendor, as and by way of a post-Closing covenant that shall not merge on Closing, that, in the event that, in relation to the period prior to January 1, 2015, the Royalty Payors provide the Purchaser or any of its Affiliates with one or more payments relating to any difference due and owning by the Buyer resulting from payments made Royalty Payors to the Vendor, together with interest thereon, pursuant to this the requirements of Sections 5.2 and 5.4 of the Royalty Agreement, it shall: (ci) one-half hold such payment in trust for the benefit of the Transfer TaxesVendor; (ii) promptly provide the Vendor with notice in writing as to the receipt of such payment; (iii) promptly pay over to the Vendor all money received by it in connection with the foregoing; and (iv) keep the Vendor reasonably informed as to all matters concerning its retention of certain rights and obligations as set forth in Sections 5.2, if applicable5.4 and 5.6 of the Royalty Agreement, and (d) Taxes in such regard and without limitation, subject to obtaining the prior written consent of Buyer or any other Personthe Royalty Payors, relating provide to the Focus Factor Business on Vendor promptly upon receipt, any and after all documentation and other information that the Closing DatePurchaser may receive from time to time in connection with such matters, whether including pursuant to an agreementthe provisions of Sections 5.6, by operation law or transferee or successor liability, or otherwise. Seller shall retain, 6.3 and Buyer shall not assume, any liability 6.7 of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesRoyalty Agreement.

Assumed Liabilities. Upon As consideration for the terms and subject purchase of the Assets pursuant to the conditions set forth in this Agreement, from the Purchaser does hereby assume, and after the Closing, the Buyer will assume and does hereby agree to pay, performsatisfy, discharge and be responsible for perform, in accordance with their respective terms, the following obligations and liabilities of the Sellerfollowing: (i) those specific liabilities and obligations of the accounts payable Seller arising under the Purchased Commitments, provided however, the Purchaser shall not so assume any such obligations or liabilities under any Purchased Commitment to the extent that (a) such obligations or liabilities arise out of a breach by the Seller or its affiliates or predecessors of any such Purchased Commitment; (b) such obligations or liabilities arise out of facts or circumstances which constitute a breach of the Seller’s representations and warranties to the Purchaser hereunder; (c) such obligations or liabilities relate to periods prior to the date of assumption at the Closing; or (d) a true and complete copy of such Purchased Commitment was not provided to the Purchaser (assuming such Purchased Commitment was in the form of a document); (ii) all obligations under service contracts set forth on Schedule 2.4(i3.1; (iii) (the “Accounts Payable”)warranty obligations with respect to Products manufactured, (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations distributed or liabilities under and breaches thereof arising sold prior to the Closing Datebut only to the extent that Bridgemedica, LLC or another supplier of the Products directly pays for or bears the costs associated with the fulfillment of such warranty obligations or reimburses the Purchaser in full for such costs within 60 days of Purchaser’s request for payment; and (iv) which the Payables (as defined in Section 4.1(S)) (collectively, such obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoas aforesaid, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after the At Closing, the Seller Parties shall assign and Buyer will shall assume and payagree to discharge Sellers from (a) the Eagle Equities senior debt financing all agreed to liabilities in the Assumed Liabilities Statement including all liabilities directly related to the Purchased Assets and (b) those liabilities arising after the Closing under the Assumed Contracts, perform, discharge and be responsible for the following other than liabilities or obligations and liabilities of the Seller: (i) the accounts payable to any Owner or affiliates of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)such Owner, (ii) arising out of or relating to any breach of any Assumed Contract or other action taken by any Seller Party before the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoClosing, and (iii) arising out of or relating to any event, circumstance or condition occurring or existing on or before the Liabilities set forth on Schedule 5.8 Closing that, with notice or lapse of time, would constitute or result in a breach of any of such Assumed Contracts, (iv) arising from contingent customer liabilities not specifically disclosed in the Disclosure Schedules, (v) that would constitute a breach of this Agreement for which Bxxxx would be entitled to receive indemnification according to Article 6 ((a) and (b) collectively, the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for Within seven (a7) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after days before the Closing Date, whether pursuant Seller Parties shall deliver to an agreementBuyer a statement (the “Assumed Liabilities Statement”) setting forth, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability as of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesClosing a complete listing of such liabilities along with the dollar amount of these liabilities.

Assumed Liabilities. Upon the terms and subject (a) Anything herein to the conditions contrary notwithstanding, neither Purchaser nor Parent shall assume or otherwise become liable for any debts, claims, Liabilities, obligations or expenses of the Companies other than (x) as may arise with respect to periods from and after the Closing under the Assumed Contracts to the extent assigned hereunder and (y) to perform and discharge certain obligations with respect to returns store credit and gift certificates as provided in Section 2.3(b) below (the "Assumed Liabilities"). Purchaser shall assume and shall duly pay, perform and discharge the Assumed Liabilities as and when due. For purposes of clarity, (i) other than as set forth in this Agreementclause (y) above, neither Purchaser nor Parent shall have any liability arising out of, or in connection with, the conduct of the Purchased Business or the ownership, operation or use of the Purchased Assets in each case prior to the Closing, all of which liabilities shall remain the responsibility of the Companies, and (ii) other than the Benefits Adjustment, none of the Companies shall have any liability arising out of, or in connection with, the conduct of the Purchased Business or the ownership, operation or use of the Purchased Assets in each case from and after the Closing, all of which liabilities shall be the Buyer will assume responsibility of Parent and pay, perform, discharge and be responsible for the following obligations and liabilities Purchaser. All Liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, Companies other than the Assumed Liabilities (collectively, the "Retained Liabilities") shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on be paid, performed and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable discharged by the Buyer resulting from payments made pursuant to this Agreement, Companies (cor such of them as the case may be) one-half of the Transfer Taxes, if applicable, as and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitieswhen due.

Assumed Liabilities. Except for the Assumed Liabilities (as defined below), BXXX shall not, by virtue of its purchase of the Purchased Assets, assume or become responsible for any Liabilities of Eton or any other Person in connection with this Purchase Agreement. Upon the terms and subject to the conditions set forth in this Agreementterms, from conditions, representations and after warranties of Eton contained herein, on the ClosingClosing Date, the Buyer will BXXX shall assume and agree to pay, perform, and discharge in a timely manner when due any and be responsible for all Liabilities of Eton arising under the following obligations and liabilities [* * *] Agreement, and, subject to the effectiveness of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities transfers of the Seller Eton Registrations in accordance with Section 3.1, the Eton Registrations, in each case, solely relating to the Territory and arising during, and relating to, the period on or after the Closing Date, including any Liabilities imposed by applicable Law with respect to obligations under the Assigned Contracts incurred [* * *] Agreement or the Eton Registrations, in each case, solely relating to the Territory and arising during, and relating to, the period on or after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretocollectively, and (iii) with the Liabilities set forth on Schedule 5.8 (of BXXX and its Affiliates under Section 7, the “Assumed Liabilities”); provided, however, that the Assumed Liabilities shall not include exclude any obligations and all Liabilities resulting from any breach of or liabilities that were not incurred in non-compliance with the ordinary course [* * *] Agreement or Eton Registrations by Eton or any of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating its Affiliates on or prior to or arising out the later of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by or the Buyer resulting from payments made pursuant to this Agreement, (c) one-half date of the Transfer Taxes, if applicable, and (d) Taxes transfer of Buyer such Purchased Assets. All Liabilities of Eton or any other Personof its Affiliates not specifically described in this Section 2.2 (collectively, relating to with the Focus Factor Business on Liabilities of Eton and its Affiliates under Section 7, the “Excluded Liabilities”) shall not be assumed by BXXX and shall remain the sole obligation and responsibility of Eton and its Affiliates after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesClosing.

Assumed Liabilities. Upon Subject to the terms and subject to the conditions set forth in of this Agreement, from and after at the Closing, Seller shall assign, and Buyer shall assume, the Buyer will assume and payAssumed Liabilities. For the purposes of this Agreement, perform, discharge and be responsible for the "Assumed Liabilities" shall mean only the following Liabilities of Seller, and in any event shall not include any Excluded Liabilities: (a) all accrued Liabilities of the Business for which Buyer receives a credit under Section 2.05, (b) those obligations and Liabilities attributable to periods after Closing under the Seller Contracts and Governmental Approvals (and pending applications therefor) that are included in the Purchased Assets, (c) other obligations and Liabilities of Seller only to the extent that there shall be an adjustment in favor of Buyer with respect thereto pursuant to Section 2.05, (d) all obligations and liabilities arising out of Buyer's ownership of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities Purchased Assets or operation of the Seller under the Assigned Contracts incurred Business after Closing, and (e) all Liabilities arising after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior attributable to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoTransferred Employees. Except only for Assumed Liabilities, Buyer does not assume, and shall not have any responsibility for, any liabilities or obligations of Seller, including but not limited to Liabilities or obligations associated with Excluded Assets (iii) collectively, the "Excluded Liabilities"). Without limiting the generality of the foregoing, Buyer does not assume, and shall not have any responsibility for, any Liabilities or obligations of Seller arising from or relating to any of the Excluded Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities2.03.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller Unless otherwise set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred 1.3 hereto or unless a Liability arising after the Closing Date (and specifically excluding under any obligations of the Assigned Contracts that does not arise out of or liabilities under and breaches thereof arising result from a Breach prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and Date (iii) the Liabilities set forth on Schedule 5.8 (collectively the “Assumed Liabilities”); provided, however, the Assumed Seller will retain, and will be solely responsible for paying, performing and discharging, and Purchaser will not assume or otherwise have any responsibility or liability for, any Liabilities shall of the Seller, including but not include any obligations limited to Liabilities arising out of or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for relating to (a) the use or ownership of the Purchased Assets by the Seller prior to the Closing or any Liabilities arising out of the Purchased Assets prior to the Closing; (b) any Liability relating to Taxes relating of the Seller or any Liabilities of any Person other than Seller under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise; (c) all Liabilities of the Seller for Taxes incident to or arising out of the Focus Factor Business accruing on and after negotiation, preparation, approval or authorization of this Agreement or the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and Transactions; (d) Taxes the Benefits Liabilities; (e) any Liability with respect to any employee of Buyer or any other Personthe Seller related to such employee’s employment with the Seller, relating including but not limited to liabilities related to the Focus Factor Business on and after termination of such employee’s employment with Seller in connection with the Transactions; (f) the Excluded Assets; or (g) Transaction Expenses (collectively, the “Excluded Liabilities”). The Purchaser shall at the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, (and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in hereby does covenant and agree to) assume the Assumed Liabilities.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, ------------------- accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from (a) liabilities and obligations arising out of events occurring on and after the Closing, Closing Date related to Buyer's ownership of the Buyer will assume Assets and pay, perform, discharge and be responsible for Buyer's operation of the following Business after the Closing Date; (b) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, Seller: 's obligations to Subscribers under such Contracts for (i) Subscriber deposits held by Seller as of the accounts payable of Seller set forth on Schedule 2.4(i) (Closing Date in the “Accounts Payable”)amount for which Buyer receives a credit pursuant to Section 1.6, (ii) the obligations and liabilities Subscriber advance payments held by Seller as of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior for services to be rendered in connection with the Closing Date) Business in the amount for which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoBuyer receives a credit pursuant to Section 1.6, and (iii) the Liabilities set forth on Schedule 5.8 delivery of Internet connectivity service to Subscribers (whether under the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations Contracts or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (aotherwise) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date Date; (including, without limitation, sales taxesc) the Current Liabilities (as hereinafter defined) of Seller; and (d) any Long-term Liabilities or other liabilities or claims specifically assumed by Buyer in writing at the Closing and for which there is an adjustment to the Purchase Price pursuant to Section 1.6(b) hereof ((a), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement), (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other Person, relating to the Focus Factor Business on than Buyer and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, have any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesrights under this Agreement.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, ------------------- accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from (a) liabilities and obligations arising out of events occurring on and after the Closing, Closing Date related to Buyer's ownership of the Buyer will assume Assets and pay, perform, discharge and be responsible for Buyer's operation of the following Business after the Closing Date; (b) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, Seller: 's obligations to Subscribers under such Contracts for (i) Subscriber deposits held by Seller as of the accounts payable of Seller set forth on Schedule 2.4(i) (Closing Date in the “Accounts Payable”)amount for which Buyer receives a credit pursuant to Section 1.6, (ii) the obligations and liabilities Subscriber advance payments held by Seller as of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior for services to be rendered in connection with the Closing Date) Business in the amount for which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoBuyer receives a credit pursuant to Section 1.6, and (iii) the Liabilities set forth on Schedule 5.8 delivery of Internet connectivity service to Subscribers (whether under the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations Contracts or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (aotherwise) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (a) and (b) Taxes payable together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by the Buyer resulting from payments made pursuant to hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer and Seller shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon Purchaser shall assume the terms liabilities set forth on Schedule 1.2 (the "Assumed Obligations") and subject the payment obligations set forth on Schedule 1.2.1 (the "Payment Obligations") up to the conditions set forth in this Agreementtotal amount of $307,609.31. The Assumed Obligations and the Payment Obligations shall be referred to herein as the "Assumed Liabilities". As to the Payment Obligations, from Seller and after the Closing, the Buyer will assume and pay, perform, discharge and Seller Parties shall be responsible for any and all liabilities related to the following Payment Obligations that exceed $307,609.31. Other than the Assumed Liabilities, in no event shall Purchaser be deemed to have assumed or be responsible for any liabilities, liens, security interests, claims, obligations or encumbrances of Seller, contingent or otherwise, and the Transferred Assets shall be sold and conveyed to Purchaser free and clear of all liabilities, liens, security interests, claims, obligations and liabilities encumbrances and arising out of the Sellerconduct of the business relating to the Transferred Assets by Seller prior to the Closing (as defined herein). Without limiting the generality of the foregoing, in no event shall Purchaser assume or be responsible for: (i) the accounts payable any income, property, franchise, sales, use or other tax of Seller set forth on Schedule 2.4(ior any filing requirements or obligations with respect thereto arising out of or resulting from the sale of the Transferred Assets hereunder (all such taxes to be paid by Seller) (or any transaction of Seller prior to or subsequent to the “Accounts Payable”), execution of this Agreement; and (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any liabilities, obligations or liabilities under costs resulting from any claim or lawsuit or other proceeding relating to the Transferred Assets or naming Seller or any successor thereof as a party and breaches thereof arising out of events, transactions or circumstances occurring or existing prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this AgreementBuyer shall, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities effective as of the Seller: Closing Date, be assigned the applicable Sellers’ interests under the Designated Contracts (as defined in Section 8.1(c), below) to be assigned by Sellers under this Agreement and shall assume all liabilities and obligations (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller Sellers accruing under the Assigned Designated Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (includingor, without limitation, sales taxesif assigned subsequently in accordance with the provisions of Section 8.1(c), (b) Taxes payable below, from the effective date of such later assignment by the Buyer resulting from payments made pursuant to this Agreementapplicable Sellers, (cii) one-half all obligations arising in connection with the use and operation of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on Property from and after the Closing Date; (iii) all liability with respect only to accrued vacation benefits of those employees of Sellers employed by Buyer following the Closing, whether (iv) the Inventory Advances, and (v) any such additional liabilities and obligations as may be set forth or described on Schedule 2.2 hereto. Other than the liabilities and obligations of Sellers expressly assumed by Buyer hereunder, Buyer is not assuming and shall not be liable for any liabilities or obligations of Sellers including any such liabilities or obligations arising out of or related to (w) any breach by any Seller of any Contract, (x) the ownership, operation or control of the Property or the Business prior to the Closing (other than the obligations undertaken by Buyer pursuant to an agreement, by operation law Section 2.4 of this Agreement and such other obligations as may be expressly assumed pursuant to this Agreement) or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume(y) other than as expressly assumed pursuant to clause (iii) of this Section 2.2, any liability or obligation or Claim of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesany employee including with respect to pension and severance obligation.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after Effective as of the Closing, the Buyer will assume shall assume, and/or shall become responsible for, as applicable, and agrees to pay, discharge or perform, discharge and be responsible for as appropriate, when due the following obligations Liabilities (such Liabilities collectively, the "Assumed Liabilities"): any Liability arising out of or relating to the Purchased Assets to the extent that any such Liability is for, relates to and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred arises during time periods after the Closing Date (and specifically excluding including any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or Liability arising out of or relating to any Third-Party Claim), including, without limitation, all amounts payable pursuant to any grower contracts included as Transferred Contracts; except as expressly provided in the Focus Factor Business accruing Distribution Agreement or the Production Agreement, any Liability arising out of or relating to the sale of Products by or on and after the Closing Date behalf of Buyer or its Affiliates (including, without limitation, sales taxes)of Products by or through Buyer's or its Affiliates' distributors, resellers or agents (bother than (A) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, Seller and (dB) Taxes distributors, resellers or agents acting on behalf of Buyer or any other Person, relating Seller)) to the Focus Factor Business on extent that any such Liability is for, relates to and arises during time periods after the Closing Date (including any and all storage and warehouse costs associated with Products incurred and related to time periods after the Closing Date); and any Tax Liability assessed against or with respect to (A) the Purchased Assets at any time after the Closing Date, whether pursuant to an agreementor (B) except as expressly provided in the Distribution Agreement, the Production Agreement, the sale of Products by operation law or transferee on behalf of Buyer or successor liabilityits Affiliate (including, without limitation, sales of Products by or otherwise. through Buyer's or its Affiliates' distributors, resellers or agents (other than (I) Seller shall retainand (II) distributors, and Buyer shall not assume, any liability resellers or agents acting on behalf of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in )) at any time after the Assumed LiabilitiesClosing Date.

Assumed Liabilities. Upon Except for the terms and subject liabilities pertaining solely to the conditions operation of the Practice at the Facility expressly set forth in this Agreement, from and after below (the Closing"Assumed Liabilities"), the Buyer will Purchaser shall not assume and pay, perform, discharge and be or become responsible for any of the following obligations and liabilities debts, claims, liabilities, obligations, damages or expenses of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities whether or not any of the Seller under foregoing relate to, or arise out of, the Assigned Contracts operation of the Practice at the Facility, of any kind or nature, whether known, unknown, contingent, absolute, liquidated, unliquidated, disputed, undisputed or otherwise, incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising accruing on or prior to the Closing Date, including, without limitation, (w) any liabilities for Taxes which obligations relate to periods prior to the Closing Date, (x) claims, suits, actions or proceedings arising out of events occurring in the operation or business of the Facility or the Practice on or prior to the Closing Date and liabilities being assumed (y) all claims that may arise with respect to services provided in connection with the Practice at the Facility on or prior to the Closing Date. The Assumed Liabilities shall be limited to all of the (a) accounts payable by the Seller in the ordinary course of business consistent with prior practice, (b) amounts due with respect to periods after the Closing Date under such certain Assigned the Contracts are specifically set forth on Schedule 2.4(ii) heretoand the Leases, and (iiic) amounts due with respect to periods after the Liabilities set forth on Schedule 5.8 (Closing Date under the “Assumed Liabilities”)DVI Capital Lease; provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date the amount of all payments (including, without limitation, sales taxesincluding principal and interest) due under the DVI Capital Lease shall not exceed the sum of $306,386.85 (payable in 21 monthly installments of $14,589.85), (b) Taxes payable by and the Buyer resulting from payments made pursuant to this AgreementSeller shall be current with all of its obligations thereunder, (c) one-half and will not be otherwise in default of any term of the Transfer TaxesDVI Capital Lease. To the extent that amounts due under the DVI Capital Lease shall exceed the sum of $306,386.85, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability be solely responsible for the payment of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiessuch excess amounts.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein neither Seller shall have any further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date; (ii) accounts payable, accrued expenses, all deferred revenues and any other current liability of such Seller as of the Closing Date (except the current portion of any bank debt or line of credit to be paid pursuant to Section 1.5) relating to the Business and included on such Seller's balance sheet, or incurred in the ordinary course since the date of such balance sheet, as determined in accordance with GAAP consistently applied (the "Assumed Current Liabilities"); and (iii) all obligations and liabilities of such Seller relating to the Business which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxessuch Seller's obligations arising under the Sprint telecommunications contracts as set forth on Schedule 1.1(b) as items 1(a) and 1(b) and such Seller's obligations to Subscribers (as defined in Section 2.16) under such Contracts for (A) Subscriber deposits held by such Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by such Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or otherwise) after the Closing Date ((i), (bii) Taxes payable and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by the Buyer resulting from payments made pursuant to hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or either Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer and each Seller shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon At the terms Closing, Seller shall transfer to Buyer, and subject to Buyer shall assume, the conditions set forth in Assumed Liabilities. For purposes of this Agreement, “Assumed Liabilities” shall mean only the following liabilities of Seller: (a) the accounts payable and accrued expenses arising from the conduct of the Business (“Payables”) in existence at the close of business on the Closing Date, (b) all obligations and liabilities with respect to the Transferred Employees attributable to the conduct of the Business from and after the Closing, the Buyer will assume Closing Date and pay, perform, discharge and be responsible for the following (c) all obligations and liabilities of Seller with respect to the Seller: Transferred Assets, but only to the extent that such obligations (i) arise after the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)Closing Date, (ii) the obligations and liabilities do not arise from or relate to any breach by Seller of the Seller under the any provision of such Assigned Contracts incurred after the Closing Date and (and specifically excluding iii) do not arise from or relate to any obligations event, circumstance or liabilities under and breaches thereof arising condition occurring or existing on or prior to the Closing Date) which obligations and liabilities being assumed under , that, with notice or lapse of time or both, would constitute or result in a breach of such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoContracts. OTHER THAN AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); providedBUYER SHALL NOT ASSUME ANY OBLIGATION OR LIABILITY OF SELLER OR THE BUSINESS OF ANY KIND, howeverAND SELLER SHALL PAY, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (includingSATISFY AND PERFORM ALL OF ITS REMAINING OBLIGATIONS, without limitationWHETHER FIXED, sales taxes)CONTINGENT, (b) Taxes payable by the Buyer resulting from payments made pursuant to this AgreementKNOWN OR UNKNOWN AND WHETHER EXISTING AS OF THE CLOSING OR ARISING PRIOR TO THE CLOSING, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesWHICH MAY AFFECT IN ANY WAY THE TRANSFERRED ASSETS.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in this Agreement, from and after At the Closing, the Buyer will shall assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (collectively the “Assumed Liabilities”); provided, howeversubject to the Transition Services Agreement, performance, after the Closing Date, of all Assumed Contracts solely to the extent the liability or obligation arises in connection with events or conditions that occur, or are to be performed, after the Effective Time. Notwithstanding the foregoing, Buyer shall not assume (A) any liabilities or obligations arising out of any breach prior to or on the Effective Time by Seller of any provision of any Assumed Contract and (B) any late penalties arising prior to or on the Effective Time. Buyer shall assume no other liabilities or obligations of Seller, other than the Assumed Liabilities. Buyer shall not be or become liable for any claims, demands, liabilities or obligations, other than the Assumed Liabilities and Buyer shall purchase the Purchased Assets free and clear of all Encumbrances, except for the Assumed Liabilities. The liabilities and obligations retained by Seller shall be referred to as the “Excluded Liabilities” and shall include all Liabilities of Seller arising from, or in connection with, the Current Customers, the Assumed Liabilities shall not include any obligations Contracts, the use or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out ownership of the Focus Factor Business accruing on and Purchased Assets by Seller or the operation of the business of Seller, including the provision of payroll processing service prior to the Closing Date, together will all continuing business activities of Seller after the Closing Date (Date, including, without limitation, sales taxes)any such Liabilities arising by reason of any violation or claimed violation by Seller, by acts or events or omissions arising or occurring prior to or after the Closing, of any federal, state or local Law, including in connection with the maintenance and operation of Custodial Accounts or the Data Privacy Laws. The Excluded Liabilities shall further include, without limitation, (a) all Liabilities and obligations relating to the Excluded Assets; (b) all Taxes payable by the Buyer concerning or relating to Seller arising out of or resulting from payments made the sale, transfer, assignment, conveyance and delivery of the Purchased Assets or the Assumed Contracts pursuant to this Agreement, ; (c) one-half of all Taxes imposed on, collected by or withheld with respect to, or in any way related to (i) Seller, (ii) the Transfer Taxes, if applicable, and Purchased Assets or (iii) the Assumed Contracts with respect to any taxable period (or portion thereof) ending on or prior to the Closing Date; (d) Taxes all Liabilities and obligations to any employees of Buyer Seller not specifically assumed by Buyer; and (e) all Liabilities and obligations of Seller under any contract, lease, instrument or other agreement (verbal or written) to which Seller is a party or by which Seller is bound not specifically assumed by Buyer, or any other Person, relating to amounts due arising out of the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiestermination thereof.

Assumed Liabilities. Upon In connection with the sale, transfer, conveyance, assignment and delivery of Assets pursuant to this Agreement, on the terms and subject to the conditions set forth in this Agreement, from and after except as otherwise provided in Section 2.02(b), at the Closing, the Buyer will Closing Purchaser shall assume and agree to pay, performperform and discharge when due (i) all obligations, discharge duties and be responsible for liabilities of MSX of whatever kind or nature (other than Liabilities which arise as a result of a violation of the following obligations covenants of the Sellers under this Agreement except to the extent of the benefits derived by the Purchaser with respect thereto), and (ii) those obligations, 3 duties and liabilities of the Seller: (i) Sellers of whatever kind or nature relating to the accounts payable of Seller set forth on Schedule 2.4(i) (APX Assets or arising in connection with the “Accounts Payable”), (ii) the obligations and liabilities operation of the Seller APX Business, which were assumed by the Sellers in accordance with the terms of the APX Purchase Agreement or which arise (without violation of the covenants of the Sellers under this Agreement except to the Assigned Contracts incurred extent of the benefits derived by the Purchaser with respect thereto) in connection with events occurring with respect to the APX Assets or the APX Continuing Business after the Effective Date, as the same shall exist on the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “"Assumed Liabilities”"); provided. The parties hereto agree and acknowledge that any Assumed Liabilities which each of Business Services and Engineering Services assumes or agrees to pay, howeverperform and discharge when due pursuant to each of the Business Services Acquisition Agreement and the Engineering Services Acquisition Agreement, respectively, shall be deemed to be part of the Assumed Liabilities shall not include any transferred hereunder. The Purchaser hereby guarantees the due and punctual payment of, and the due and punctual performance of all covenants, agreements and obligations or liabilities that were not incurred in with respect to the ordinary course of business. Assumed Liabilities by each of Holdings, Business Services, Engineering Services or USA. Each of Purchaser, Holdings, Business Services and Engineering Services, as appropriate, shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable confirm such assumption by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, execution and (d) Taxes of Buyer or any other Person, relating delivery to the Focus Factor Business Sellers, on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, of the Assignment and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included Assumption Agreement in the Assumed Liabilitiesform of Exhibit 2.02.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller shall have no further liability or responsibility for or with respect to, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date; (ii) accounts payable, advance payments by Subscribers, accrued expenses, all deferred revenues and any other current liability of Seller as of the Closing Date (except the current portion of any bank debt or line of credit to be paid pursuant to Section 1.5) included on Seller's balance sheet, as determined in accordance with GAAP consistently applied (the "Assumed Current Liabilities"); and (iii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxesSeller's obligations to Subscribers (as defined in Section 2.16) under such Contracts for (A) Subscriber deposits held by Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or otherwise) after the Closing Date ((i), (bii) Taxes payable and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer, Seller and the Buyer resulting from payments made pursuant to Principal Shareholder shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon the terms and subject to the conditions set forth in of this Agreement, from at the Closing, Seller or its applicable Affiliates shall assign and Buyer or its applicable Affiliates shall assume and agree to pay, perform and discharge when due all Liabilities of Seller and its Affiliates (a) arising out of, relating to or otherwise in respect of the Purchased Assets or the Product Business (other than Taxes and except as otherwise provided in, or with respect to any claims arising under, any Ancillary Agreement) in respect of the period after the Closing Date; (b) for Product Liability Claims (other than Seller Product Liability Claims or other Excluded Liabilities) arising out of the Manufacture, use, distribution or sale any unit of Product in the Territory prior to, on or after the Closing; (c) (i) to suppliers for materials and services relating to the Purchased Assets to be delivered or provided after the Closing, the Buyer will assume and pay, perform, discharge and be responsible (ii) to customers for the following obligations and liabilities units of Product that have not been shipped as of the Seller: Closing and (iii) for accounts payable arising or occurring after the Closing Date with respect to the Product Business; (d) for any recalls or market withdrawals in respect of any Product sold in the Territory (except (i) to the accounts payable extent initiated by Seller or any of Seller its Affiliates at or prior to the Closing to the extent permitted by this Agreement or (ii) otherwise provided in any Ancillary Agreement); (e) under any Purchased Contract, including, for clarity, each of the Prior Acquisition Agreements and the Manufacturing Contracts (subject to Section 8.1.1(c)); (f) under any Contract set forth on Schedule 2.4(i2.2.3; (g) (the “Accounts Payable”)i) for any Taxes arising as a result of any Buyer Tax Act, (ii) the obligations for any Transfer Taxes allocated to Buyer pursuant to Section 5.13.1 and liabilities (iii) for any Taxes in respect of the Seller under Product Business or the Assigned Contracts incurred Purchased Assets for any taxable period (or portion thereof) beginning after the Closing Date (other than any Taxes imposed with respect to the Later Purchased Inventory and specifically excluding Manufacturing Contracts for any obligations taxable period (or liabilities under and breaches thereof arising portion thereof) ending prior to the time of sale, transfer, conveyance, assignment and delivery of such assets pursuant to Section 2.9.1(c), Section 2.9.2(b) and Section 2.9.3 of the Transition Agreement), in each case, other than Taxes that are Excluded Liabilities; (h) for (A) any royalties payable pursuant to Section 2.15 of the Takeda Agreement in respect of the period after the Closing Date, (B) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, any milestone payments payable pursuant to Section 2.13 of the Takeda Agreement and (iiiC) any “Transaction Payment” triggered on the Liabilities set forth on Schedule 5.8 basis of a “Product Transfer” occurring after the Closing Date (but excluding, for the avoidance of doubt, any Transaction Payment triggered by the consummation of the Transactions contemplated by this Agreement); and (i) assumed by Buyer pursuant to Article 6 ((a) through (i), collectively, the “Assumed Liabilities”); provided, however, that (x) Liabilities for Payment Claims shall be allocated between the Parties (or their respective Affiliates) as set forth in the Commercial Agreement and shall not be Assumed Liabilities shall not include any obligations or liabilities that were not incurred and (y) solely with respect to the Later Purchased Inventory and the Manufacturing Contracts included in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating Purchased Assets, the references in this Section 2.3.1 to the Closing or arising out of the Focus Factor Business accruing on and after the Closing Date (includingshall be deemed to refer to the time and date, without limitationas applicable, sales taxesof the sale, transfer, conveyance, assignment and delivery of such assets pursuant to Section 2.9.1(c), (bSection 2.9.2(b) Taxes payable by and Section 2.9.3 of the Buyer resulting from payments made pursuant to this Transition Agreement, (c) one-half of the Transfer Taxes, if as applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.

Assumed Liabilities. Upon Subject to the terms and subject to the conditions set forth in this Agreementherein, from Xxxxx shall assume and agree to pay, perform and discharge when due any and all liabilities and obligations of Seller arising out of or relating to the Business or the Purchased Assets [prior to,] on or after the Closing, other than the Buyer will assume and payExcluded Liabilities (collectively, performthe "Assumed Liabilities"), discharge and be responsible for including, without limitation, the following obligations and liabilities following: all trade accounts payable of Seller to third parties in connection with the Business that remain unpaid as of the Seller: Closing Date; all liabilities and obligations arising under or relating to the Assigned Contracts; except as specifically provided in Section VI.04, all liabilities and obligations of Buyer or its Affiliates relating to employee benefits, compensation or other arrangements with respect to any Transferred Employee arising on or after the Closing; all liabilities and obligations for (i) Taxes relating to the accounts payable Business, the Purchased Assets or the Assumed Liabilities for any taxable period ending after the Closing Date and (ii) Taxes for which Buyer is liable pursuant to Section VI.11; all other liabilities and obligations arising out of or relating to Xxxxx's ownership or operation of the Business and the Purchased Assets [prior to,] on or after the Closing; [all liabilities and obligations of Seller set forth on Schedule 2.4(i(f) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”)Disclosure Schedules; provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesand] [[ANY OTHER ASSUMED LIABILITIES].]

Assumed Liabilities. Upon On the terms and subject to the conditions set forth in this Agreement, from and after at the Closing, the Buyer will DHLC shall assume and become responsible for, and shall thereafter pay, performperform and discharge as and when due the Liabilities arising under or related to the Purchased Assets to the extent arising from, or relating to, periods of time after the Closing as described in Section 3.1, and Purchasers shall cause OLC to assume and become responsible for, and thereafter pay, perform and discharge as and be responsible when due the Liabilities arising under or related to the Mining Reserves to the extent arising from, or relating to, periods of time after the Closing as described in Section 3.1; provided, however, that for the following obligations and liabilities avoidance of the Seller: doubt, (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations no Liabilities shall be assigned to or assumed by DHLC other than those expressly assigned and liabilities of the Seller assumed under the Assigned Contracts incurred after Assets Assignment Agreement, the Closing Date (Xxxx of Sale or the Improvements Deed, or by OLC other than those expressly assigned and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretothe Lease Assignment, and (iii) the Liabilities set forth on Schedule 5.8 Mine Permit Transfer Agreement or the Real Property Deeds (the “Assumed Liabilities”); provided, however, and (ii) the Assumed Liabilities shall not expressly include any RRMC’s maintenance and reclamation obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating with respect to the Focus Factor Business on and after CLECO Stockpile not required under applicable Legal Requirements to be completed prior to the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retainThe Assumed Liabilities will not include, and Buyer shall DHLC will not assume, any liability Retained Liabilities. The Retained Liabilities will be retained by and remain the obligation of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesRRMC.

Assumed Liabilities. Upon As of the terms Closing Date (as defined below), Buyer shall undertake, assume, and subject agree to perform, and otherwise pay, satisfy and discharge as of the Closing (a) all accrued liabilities (other than taxes), customer deposits, and accounts payable of Seller in each case, as set forth on Schedule 1.2(a), and (b), those obligations, duties and liabilities of Seller with respect to the conditions set forth Assumed Contracts (as defined below), licenses and other arrangements included in, the Purchased Assets, in this Agreement, each case only to the extent arising from and after the ClosingClosing Date and not arising from or relating to any breach, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of default or failure by the Seller under to perform any covenants or obligations required to be performed by the Assigned Contracts incurred after Seller of such Assumed Contracts, licenses and other arrangements included in the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising Purchased Assets prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 Date (the “Assumed Liabilities”); provided, however, that the Assumed Liabilities shall include no other liability of Seller of any kind or nature whatsoever and shall not include any obligations or liabilities that were not incurred in the ordinary course of businessExcluded Labilities (as defined below). “Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out Contracts” means all of the Focus Factor Business accruing on and after the Closing Date Contracts (including, without limitation, sales taxes)non-competition agreements by and between any Seller and any employee, (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, consultant or other person and (d) Taxes of Buyer or any other Personengagement letters, contract extensions, rebids, existing proposals, bids, opportunities pursued, purchase orders and any sales contracts in the pipeline) used in conducting or relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed LiabilitiesBusiness.

Assumed Liabilities. Upon For the purposes of this Agreement and the other Transaction Agreements (including the Local Transfer Agreements with respect to all Sellers located outside of the United States), "Assumed Liabilities" means:(i) all Liabilities of the Company or any of its Subsidiaries (other than the Excluded Liabilities described in clauses (i)-(v) of the definition of Excluded Liabilities and Liabilities relating to Employees) to the extent resulting from, arising out of or relating to the Business or the Transferred Assets, whether arising before, at or after the Closing;(ii) all Liabilities with respect to Offered Business Employees who become Transferred Employees that arise or are incurred after the Closing in respect of services provided by such employees to the Buyer or a Buyer Designee after the Closing;(iii) all Liabilities and obligations arising out of or in any way relating to the employment, transfer or termination of employment of any Automatic Transferred Employee or with respect to gratuity benefits attributable to Transferred Employees engaged in the Business in India (inclusive of their years of service with the Company and its Affiliates as required by Section 6.1(h)), including under any Employee Plan or Collective Status, regardless of when arising or accrued and notably including, without limitation, when existing, arising or accrued on or before the Closing Date, during the course of employment with the Company or any Employing Subsidiary, except as set forth on Schedule 2.1(d)(iii);and(iv) all Immigration Rights, to the extent permitted by applicable Law;(v) all liabilities set forth on Schedule 2.1(d)(v).On the terms and subject to the conditions set forth in this Agreement, from and after effective as of the Closing, Seller shall and shall cause its applicable Sellers to convey and the Buyer will shall or shall cause its applicable Buyer Designee designated by the Buyer for such conveyance to assume and payagree to perform, performsatisfy, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in fulfill when due the Assumed Liabilities.The Parties acknowledge and agree that the provisions of this Section 2.1(d) do not in any way affect, alter or otherwise diminish either party's rights or obligations regarding indemnification under Section 10.2(a)(i)(B), Section 10.2(b)(i)(B), Section 10.2(a)(i)(C), Section 10.2(b)(i)(C), Section 10.2(a)(i)(D) or Section 10.2(b)(i)(D) for any breach of or inaccuracy in any representation or warranty or any breach of covenant of the applicable Party.(e)

Assumed Liabilities. Upon the terms and subject The Buyer hereby agrees to the conditions set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible for the following obligations and liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the all obligations and liabilities of the Seller under the Assigned Transferred Contracts incurred with respect to work to be performed or matters arising on or after the Closing Date Date, (ii) all obligations of the Seller under the Transferred Lease, whether as tenant or otherwise, with respect to matters arising on or after the Closing Date, and specifically excluding any obligations Liability arising out of or liabilities under relating to such obligations; (iii) certain deposits, advance payments, and breaches thereof arising other prepaid amounts paid by Seller on or prior to the Closing Date) which obligations Date to those vendors, suppliers, and liabilities being assumed under such certain Assigned contractors with respect to Transferred Contracts are and to the landlord with respect to the Transferred Lease, as specifically set forth on Schedule 2.4(ii2(d) hereto(the “Assumed Prepaid Amounts”), (iv) Liabilities related to the Transferred Customer Owned Inventory occurring or arising after the Closing Date; and (v) customer warranty claims under the Transferred Contracts (“Warranty Claims”) but, in the case of clause (v), (x) only on terms and at rates set forth in the applicable Transferred Contract or, if none, (1) as agreed upon by the Seller and such customer in writing on or before the Closing Date, or (2) if no such price is agreed pursuant to clause (1), as agreed upon by the Buyer and the Seller before the Buyer commences work on any such Warranty Claim, or (3) if no such price is agreed pursuant to clause (2), the standard rates typically charged by the Buyer for similar work performed for its customers, and (iiiy) the Liabilities set forth on Schedule 5.8 cost of such Warranty Claims shall be deducted from the Holdback Amount, and if in excess of the Holdback Amount such excess shall be paid by the Seller to the Buyer immediately in cash upon written notice thereof (clauses (i) through (v), the “Assumed Liabilities”); provided, however, it being understood that the Assumed Liabilities shall Buyer is not include assuming any obligations Liability of the Seller related to the Transferred Lease or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to Transferred Contracts occurring or arising out of the Focus Factor Business accruing on and after prior to the Closing Date (including, without limitation, sales taxes), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesthan Warranty Claims.

Assumed Liabilities. Upon On the terms basis of the representations, warranties, covenants and agreements and subject to the satisfaction (or waiver by the Party whose obligations hereunder are subject to such satisfaction) of the conditions set forth in this Agreement, on the Closing Date and with respect to the Delayed Transfer Liabilities, at such time after the Closing Date as such Delayed Transfer Liability can be transferred, Buyer shall deliver to the Sellers undertakings in the forms attached as Exhibit A-1 and Exhibit A-2 (the "Assumption Agreements") pursuant to which Buyer shall, on and as of the Closing Date, assume and agree to pay, perform and discharge when due, the following liabilities and obligations of the Sellers (without duplication): (a) the Sellers' obligations under the contracts, agreements, leases and commitments included as Assets, which are assigned by the Sellers to Buyer and as to which Buyer succeeds to the rights of the Sellers, but, only to the extent of liabilities and obligations that arise thereunder after the opening of business on the Effective Date; (b) the Sellers' obligations under the licenses, permits and Transferred Franchises included as Assets, but only to the extent of liabilities and obligations that arise thereunder after the opening of business on the Effective Date; (c) liabilities and obligations of the Sellers arising out of the operation of the Assets from and after the Closing, opening of business on the Buyer will assume Effective Date (other than as a result of any breach by the Sellers of their obligations hereunder); (d) the payment of rent and pay, perform, discharge the performance of other obligations pertaining to the operations of the Transferred Franchises from and after the opening of business on the Effective Date; (e) obligations incurred after the opening of business on the Effective Date for the Service Agreements; (f) obligations incurred after the opening of business on the Effective Date for the employees hired by Buyer; provided that Buyers shall not be responsible for any "stay" or "retention" bonuses agreed to be awarded by any Seller or any of their respective Affiliates to any employee of any Seller or any other liabilities of such employees incurred prior to the following Effective Date, except as otherwise provided in the Transition Services Agreement; (g) Customer Contracts relating to the Transferred Franchises from and after the opening of business on the Effective Date to the extent reflected on the books and records of account of the Sellers; and (h) liabilities and obligations of the Sellers related to Prepaid Fees relating to the Transferred Franchises from and after the opening of business on the Effective Date to the extent reflected on the books and records of account of the Sellers. Notwithstanding the foregoing, Buyer is not assuming, nor shall it be deemed to have assumed, any other obligations or liabilities of the Seller: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”)Sellers, (ii) the obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date (including, without limitation, sales taxes)any obligations or liabilities of any Seller (i) to any of the Sellers' respective stockholders or Affiliates or to any of the Sellers' employees for any pre-Closing period or for personal services, (bii) Taxes payable by the Buyer resulting from payments made pursuant to this Agreementfor Funded Debt, (ciii) one-half for federal, state or municipal income or other Taxes with respect to any period ending on or prior to the Effective Date or with respect to the Retained Business, (iv) for related party payables, (v) related to any previous acquisitions or similar transactions, (vi) any liabilities of any employees of any Seller not hired by Buyer, whether or not incurred prior to, on, or following the Transfer Taxes, if applicable, and Effective Date or (dvii) Taxes of Buyer any liability or any other Person, obligation relating to the Focus Factor Business on Excluded Assets. The liabilities and after obligations assumed by Buyer in accordance with clauses (a) through (h) of this Section 2.5 are sometimes hereinafter referred to as the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the "Assumed Liabilities."

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, ------------------- accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreementherein Seller and the Principals shall have no further liability or responsibility for or with respect to, from (a) liabilities and obligations arising out of events occurring on and after the Closing, Closing Date related to Buyer's ownership of the Buyer will assume Assets and pay, perform, discharge and be responsible for Buyer's operation of the following Business after the Closing Date; (b) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, Seller: 's obligations to Subscribers (as defined herein) under such Contracts for (i) Subscriber deposits held by Seller as of the accounts payable of Seller set forth on Schedule 2.4(i) (Closing Date in the “Accounts Payable”)amount for which Buyer receives a credit pursuant to Section 1.6, (ii) the obligations and liabilities Subscriber advance payments held by Seller as of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior for services to be rendered in connection with the Closing Date) Business in the amount for which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) heretoBuyer receives a credit pursuant to Section 1.6, and (iii) the Liabilities set forth on Schedule 5.8 delivery of Internet connectivity service to Subscribers (whether under the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations Contracts or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (aotherwise) Taxes relating to or arising out of the Focus Factor Business accruing on and after the Closing Date Date; (includingc) the Current Liabilities (as hereinafter defined) of Seller; (d) any Long-term Liabilities or other liabilities or claims specifically assumed by Buyer in writing at the Closing and for which there is an adjustment to the Purchase Price pursuant to Section 1.6(b) hereof; and (e) the following liabilities and obligations with respect to the Business: (i) all liabilities and obligations under the Worker Adjustment and Retraining Notification Act of 1988 and Sections 109.07 and 109.075 of the Wisconsin Statutes; (ii) all liabilities and obligations with respect to health insurance coverage, without limitationto the extent assumed by the Buyer, sales taxesas provided in Section 1.3(c) below; and (iii) all liabilities and obligations for vacation pay, sick pay and holiday pay with respect to the Transferred Employees (as defined below) (but only to the extent Buyer receives credit therefor pursuant to Section 1.6(a) hereof) ((a), (b) Taxes payable by the Buyer resulting from payments made pursuant to this Agreement), (c) one-half of the Transfer Taxes), if applicable, and (d) Taxes and (e) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other Personthan Buyer, relating to Seller and the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller Principals shall retain, and Buyer shall not assume, have any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilitiesrights under this Agreement.

Assumed Liabilities. Upon Buyer shall, on and as of the terms Closing Date, accept and subject to the conditions assume, and shall become and be fully liable and responsible for, and other than as expressly set forth in this Agreement, from and after the Closing, the Buyer will assume and pay, perform, discharge and be responsible herein Seller shall have no further liability or responsibility for the following obligations and liabilities of the Selleror with respect to: (i) the accounts payable of Seller set forth on Schedule 2.4(i) (the “Accounts Payable”), (ii) the liabilities and obligations and liabilities of the Seller under the Assigned Contracts incurred after the Closing Date (and specifically excluding any obligations or liabilities under and breaches thereof arising prior to the Closing Date) which obligations and liabilities being assumed under such certain Assigned Contracts are specifically set forth on Schedule 2.4(ii) hereto, and (iii) the Liabilities set forth on Schedule 5.8 (the “Assumed Liabilities”); provided, however, the Assumed Liabilities shall not include any obligations or liabilities that were not incurred in the ordinary course of business. Assumed Liabilities shall include any liabilities for (a) Taxes relating to or arising out of the Focus Factor Business accruing events occurring on and after the Closing Date related to Buyer's ownership of the Assets and Buyer's operation of the Business after the Closing Date; (ii) accounts payable, advance payments by Subscribers, accrued expenses, all deferred revenues and any other current liability of Seller as of the Closing Date (except the current portion of any bank debt or line of credit to be paid pursuant to Section 1.5 and except Notes Payable of Seller, as set forth on Schedule 1.3(a) fees for professional services rendered to Seller prior to and as of the Closing Date by the law firm of Long, Xxxxxx, Xxxxxx & Xxxxx, P.A. and by Xxxxx, Xxxxxxx CPA Group, P.A. included on Seller's balance sheet, as determined in accordance with GAAP consistently applied (the "Assumed Current Liabilities"); and (iii) all obligations and liabilities of Seller which are to be performed after the Closing Date arising under the Contracts, including, without limitation, sales taxesSeller's obligations to Subscribers (as defined in Section 2.16) under such Contracts for (A) Subscriber deposits held by Seller as of the Closing Date in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, (B) Subscriber advance payments held by Seller as of the Closing Date for services to be rendered in connection with the Business in the amount for which Buyer receives a credit pursuant to Section 1.6(a) below, and (C) the delivery of Internet connectivity service to Subscribers (whether pursuant to a Contract or otherwise) after the Closing Date ((i), (bii) Taxes payable and (iii) together, the "Assumed Liabilities"). The assumption of the Assumed Liabilities by the Buyer resulting from payments made pursuant to hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller or any of their respective affiliates or subsidiaries. No parties other than Buyer and Seller shall have any rights under this Agreement, (c) one-half of the Transfer Taxes, if applicable, and (d) Taxes of Buyer or any other Person, relating to the Focus Factor Business on and after the Closing Date, whether pursuant to an agreement, by operation law or transferee or successor liability, or otherwise. Seller shall retain, and Buyer shall not assume, any liability of Seller, direct or indirect, known or unknown, absolute or contingent, not expressly included in the Assumed Liabilities.