Common use of Assumption of Liabilities; Retained Liabilities Clause in Contracts

Assumption of Liabilities; Retained Liabilities. (a) Except as otherwise provided in Section 3.04(b) below, Purchaser shall assume at Closing and pay the following obligations (“Assumed Liabilities”): (i) Seller’s obligations and liabilities with respect to the Property or operation of the Hotel which this Agreement expressly provides are to be assumed by Purchaser; and (ii) all liabilities relating to the Property or operation of the Hotel that first arise after the Cut-off Time, other than Retained Liabilities, subject to the adjustments and prorations described in Article VIII and the indemnification provisions of this Agreement. (b) Purchaser shall have no liability or obligation for the following (“Retained Liabilities”): (i) federal, state and local income, franchise, sales or payroll taxes, Excise Taxes or other Taxes (other than real estate taxes and assessments which shall be prorated as of the Cut-off Time) of Seller or for which Seller is liable, including any interest and/or penalties thereon, arising prior to the Cut-off Time; (ii) any unemployment compensation or industrial insurance deposit obligations relating to the Property and Employees (collectively, “Employment Obligations”) that arise prior to the Cut-off Time; (iii) any liability the existence of which would constitute a breach of any of Seller’s representations or warranties contained in Article V; and (iv) all liabilities and obligations relating to the Property or operation of the Hotel that arise from acts or events that occur prior to the Cut-off Time, subject to the adjustments and prorations described in Article VIII; and (v) any litigation pending against the Seller or its affiliates, including without limitation the claim asserted by 4th & Pike Building, LLC et al. in King County Superior Court. (c) Notwithstanding the foregoing or anything to the contrary, after Closing, Seller shall promptly pay any Excise Taxes and Employment Obligations attributable to periods prior to Closing.

Assumption of Liabilities; Retained Liabilities. (a) Except as otherwise provided in Section 3.04(b) belowUpon the terms and subject to the conditions of this Agreement, and other than with respect to the Retained Liabilities, Purchaser shall assume at unconditionally assume, subject to and effective as of the Closing, and shall pay, perform and discharge after the Closing when due, each of (and pay only) the following obligations specifically identified Liabilities of the Divesting Entities (collectively, the “Assumed Liabilities”): ): (i) Seller’s obligations Liabilities to suppliers for materials and liabilities services relating to the Transferred Assets ordered prior to the Closing in the ordinary course of business consistent with past practices, but scheduled to be delivered or provided thereafter; (ii) Liabilities arising after and relating to periods from and after the Closing Date under any Transferred Contract, or any Shared Contract assigned to Purchaser or any of its Affiliates in accordance with Section 2.03(d), including with respect to the Property performance or non-performance under, or any breach of or default under, any such Transferred Contract or Shared Contract occurring after the Closing Date; (iii) Environmental Liabilities (other than the Environmental Liabilities described in Section 2.04(a)(iv)) to the extent arising out of, relating to or otherwise in respect of the occupancy, operation, use or lease of, or any Release of Hazardous Substances at, the Chelsea Facility by Purchaser or any of its Affiliates after the Closing Date, including any Environmental Liabilities arising out of, relating to or otherwise in respect of (A) the Release of any Hazardous Substance at or from the Chelsea Facility by Purchaser or its Affiliates after the Closing Date, (B) any violation of any Environmental Law by Purchaser or its Affiliates in connection with the occupancy, operation, use or lease of the Chelsea Facility after the Closing Date, (C) the performance or non-performance under, or any breach of or default under, the Consent Agreement occurring after the Closing Date, or (D) any disturbance or excavation of the soil at Chelsea Facility by Purchaser or any of its Affiliates after the Closing Date; (iv) Environmental Liabilities, in an amount not to exceed $[*****] in the aggregate, suffered or incurred on or prior to [*****] arising out of, relating to or otherwise in respect of [*****] (collectively, the “Assumed [*****] Environmental Liabilities”; (v) Liabilities expressly assumed by Purchaser pursuant to Article VII; and (vi) Liabilities for (A) Taxes of Purchaser or any of its Affiliates (or any member of a consolidated tax filing group containing Purchaser or any of its Affiliates); (B) Taxes relating to the Transferred Assets or the operation of the Hotel which this Agreement expressly provides are to be assumed by Chelsea Facility for any Post-Closing Tax Period; (C) Purchaser; ’s share of Transfer Taxes under Section 6.18(b)(ii) and (iiD) all liabilities relating property and ad valorem Taxes (other than Transfer Taxes) with respect to the Property or operation of the Hotel that first arise after the Cut-off Time, other than Retained Liabilities, subject Transferred Assets allocated to the adjustments and prorations Post-Closing Tax Period pursuant to Section 6.18(b)(iii); provided that (x) Taxes described in Article VIII Section 2.04(b)(i)(E) and the indemnification provisions (y) Taxes imposed on Purchaser or any of this Agreementits Affiliates as a result of a breach of any representation or warranty set forth in Section 4.07 shall not be Assumed Liabilities. (b) Purchaser shall have no liability not assume, and shall not be responsible to pay, perform or obligation for discharge, any Liabilities of any Divesting Entity of any kind or nature whatsoever, other than the following Assumed Liabilities (the “Retained Liabilities”): ). The Retained Liabilities include each of the following: (i) federalLiabilities for (A) Taxes of Seller or any of its Affiliates (or any member of a consolidated, state combined or unitary tax filing group containing Seller or any of its Affiliates); (B) Taxes relating to the Transferred Assets or the operation of the Facilities for any Pre-Closing Tax Period, including any Taxes that are not due or assessed until after the Closing Date, but which are attributable to the Pre-Closing Tax Period; (C) Seller’s share of Transfer Taxes under Section 6.18(b)(ii); (D) property and local income, franchise, sales or payroll taxes, Excise Taxes or other ad valorem Taxes (other than real estate taxes Transfer Taxes) with respect to the Transferred Assets allocated to the Pre-Closing Tax Period pursuant to Section 6.18(b)(iii); and assessments which shall be prorated as of the Cut-off Time(E) other Taxes of Seller or any of its Affiliates (or any member of a consolidated, combined or unitary tax filing group containing Seller or any of its Affiliates) that becomes a Liability of Purchaser under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of Contract or Law; (ii) Liabilities expressly retained by Seller pursuant to Section 7.01; (iii) Liabilities under any Contracts that are neither Transferred Contracts nor Shared Contracts; (iv) Liabilities under any Transferred Contracts, or any Shared Contracts that are assigned to Purchaser or any of its Affiliates in accordance with Section 2.03(d), solely to the extent such Liabilities (A) arise on or before, or relate to periods on or before, the Closing Date or (B) arise from or relate to any breach of or default under such Transferred Contract or Shared Contract, as applicable, by any Divesting Entity on or before the Closing Date; (v) Liabilities in respect of indebtedness for which Seller is liableborrowed money owing or guaranteed by the Divesting Entities, including such Liabilities with respect to the Transferred Assets or the Facilities; (vi) accounts payable of any Divesting Entity; (vii) subject to Section 10.12, other than the Assumed [*****] Environmental Liabilities, Environmental Liabilities to the extent arising out of, relating to or otherwise in respect of the occupancy, operation, use or lease of, or any Release of Hazardous Substances at, the Chelsea Facility on or prior to the Closing Date, including any interest and/or penalties thereonEnvironmental Liabilities arising out of, arising relating to or otherwise in respect of (A) the Release of any Hazardous Substance at or from the Chelsea Facility on or prior to the Cut-off Time; Closing Date, (iiB) any unemployment compensation violation of any Environmental Law in connection with the occupancy, operation, use or industrial insurance deposit obligations relating lease of the Chelsea Facility on or prior to the Property and Employees Closing Date, or (C) the performance or non-performance under, or any breach of or default under, the Consent Agreement occurring on or prior to the Closing Date, in each case except to the extent, if any, that the Landlord (as defined in the Chelsea Lease) shall actually indemnify for such Liabilities pursuant to the terms of the Chelsea Lease or otherwise (collectively, the “Employment ObligationsRetained Environmental Liabilities”); (viii) that arise prior to the Cut-off Time; (iii) any liability the existence of which would constitute a breach of any of Seller’s representations or warranties contained in Article V; and (iv) all liabilities intercompany debts and obligations of the Divesting Entities; (ix) Liabilities arising from or relating to (including Liabilities arising out of or relating to Proceedings in respect of) the Property ownership or operation of the Hotel that arise from acts Transferred Assets, the Chelsea Facility and the Waltham Facility on or events that occur prior to the Cut-off TimeClosing Date, subject other than those Liabilities expressly assumed by Purchaser pursuant to Section 2.04(a), including (for the avoidance of doubt) all Liabilities relating to or arising from (A) the Manufacture of products at, or products Manufactured at, the Chelsea Facility prior to the adjustments and prorations described in Article VIII; and Closing Date, including any partial Manufacture of products or products partially Manufactured at the Chelsea Facility, or (vB) any litigation pending against violation of applicable Law on or prior to the Closing Date, including any failure to obtain, maintain in effect or comply with any Permit required under applicable Law in connection with the leasing, ownership, use, occupancy and operation of the Transferred Assets or the Chelsea Facility on or prior to the Closing Date; (x) Liabilities of Seller or any of its affiliatesAffiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, including without limitation the claim asserted by 4th & Pike Buildingfees and expenses of counsel, LLC et al. in King County Superior Court.accountants, consultants, advisers and others; and (cxi) Notwithstanding the foregoing or anything Liabilities to the contrary, after Closing, Seller shall promptly pay any Excise Taxes and Employment Obligations attributable extent arising out of or relating to periods prior to Closingthe Excluded Assets.

Assumption of Liabilities; Retained Liabilities. (a) Except as otherwise provided in Section 3.04(b) belowUpon the terms and subject to the conditions of this Agreement and the Ancillary Agreements, at the Closing, Purchaser shall assume at Closing and pay shall be solely and exclusively responsible for paying, performing and discharging when due all Liabilities of Sellers resulting from or relating to the following obligations Business, whether arising before or after the Closing, except for the Retained Liabilities (collectively, the “Assumed Liabilities”): ). Without limiting the generality of the foregoing, except to the extent such Liabilities constitute Retained Liabilities, the Assumed Liabilities shall include: (i) Seller’s other than certain Liabilities otherwise regulated by this Section 2.02, all Liabilities relating to or arising out of Contracts or commercial relationships in regard to the Business, including without limitation (A) any such Liabilities arising as a direct consequence of the assignment of the Transferred Assets (including, for the avoidance of doubt, the Assumed Shared Contracts) by Sellers to Purchaser; (B) all Payables; and (C) all Indebtedness of Sellers related to the Business other than Indebtedness for Borrowed Money, which will be paid off at Closing; (ii) all Liabilities relating to or arising out of the conduct of the Business either before or after the Closing, including without limitation claims that have not accrued, been asserted, resolved or settled prior to the Closing, including those relating to breach of contract, either express warranties extended by any of Sellers prior to the Closing, warranties or obligations implied or provided by Law, product liability, strict liability in tort, or negligence, except such of those claims which are (A) currently or hereafter pending in any judicial, arbitral, administrative or other proceedings before any Governmental Authority, or (B) otherwise currently or hereafter asserted, against any of Sellers or their Affiliates (all of which, however, to the extent they relate to the Business, shall in each case be subject to indemnification by Purchaser, as provided in Article IX); (iii) all Liabilities with respect to claims of whatever nature seeking compensation or recovery for personal injury or property damage, including without limitation such as result from defects or alleged defects in products sold by the Business, the operation of the Business, or any condition at a Business Location (including the Orrville Site), in each case either before, on or after the Closing, except such of those claims which are (A) currently or hereafter pending in any judicial, arbitral, administrative or other proceedings before any Governmental Authority, or (B) otherwise currently or hereafter asserted, against any of Sellers or their Affiliates (all of which, however, to the extent related to or relating to the Business shall in each case be subject to indemnification by Purchaser, as provided in Article IX); (iv) all Liabilities in regard to any Environmental Claims relating to or in connection with the Norwalk Site, the Shadyside Site, the Orrville Site, the Kings Mountain Site, the Bellaire Site, and liabilities the Farmington Hills Site, subject, however, in certain instances to indemnification of Purchaser by Seller pursuant to Section 9.02(a)(iv) hereof; (v) subject to the provisions of Section 2.02(b) and Article VI hereof, all Liabilities with respect to the Property or operation current and former employees of the Hotel which Business relating to their employment with any of Sellers or the termination thereof, including, without limitation, wages or other compensation, vacation, medical, other health benefit and workers’ compensation claims; (vi) all Liabilities of Purchaser with respect to the Business pursuant to this Agreement expressly provides are to be assumed by Purchaser; and the Ancillary Agreements; (iivii) all liabilities Liabilities with respect to claims by other Persons of infringement or other misappropriation of the Intellectual Property rights of such other Persons by any of Sellers relating solely to the conduct of the Business, except for any Actions pending as of the Closing Date; (viii) all Liabilities under or with respect to the Transferred Plans to the extent provided in Article VI; (ix) all Liabilities under the collective bargaining agreements set forth on Section 3.14(a) of the Disclosure Schedule; and (x) all Liabilities relating to the Property or operation ITEC Aluminum Cab Warranty more particularly described in Exhibit M hereto (the “ITEC Liabilities”), subject, however, in certain instances to indemnification of the Hotel that first arise after the Cut-off Time, other than Retained Liabilities, subject Purchaser by Seller pursuant to Section 9.02(a)(v) hereof. Notwithstanding anything to the adjustments and prorations described contrary in Article VIII and this Section 2.02(a), Purchaser shall not assume any Liabilities for Taxes attributable to periods (or portions thereof) ending on or prior to the indemnification provisions of this AgreementClosing Date. (b) Purchaser Notwithstanding the provisions of Section 2.02(a), Sellers shall have no liability or obligation retain, and shall assume and be solely and exclusively responsible for paying, performing and discharging when due, the following Liabilities of Sellers (the “Retained Liabilities”): ): (i) federalthose guarantees disclosed in Section 2.02(b)(i) of the Disclosure Schedule and any guarantees of Indebtedness of any Affiliate of Sellers (including, state without limitation, Mayflower Plc); (ii) all Liabilities to the extent relating to or arising out of Seller’s South Charleston Business or the Retained Assets; (iii) all Taxes owed by any of Sellers attributable to periods (or portions thereof) ending on or prior to the Closing Date; (iv) all Liabilities with respect to real estate taxes applicable to the Owned Real Property to the extent they are attributable to periods up to and local income, franchise, sales or payroll taxes, Excise Taxes including the Closing Date; (v) all Liabilities relating to the payment of benefits or other Taxes compensation, cash, medical, other health benefit claims (other than real estate taxes and assessments which shall be prorated as workers’ compensation claims to the extent specified in Section 2.02(b)(vi) below) in connection with the employment or termination of employment of any current or former employees of the Cut-off TimeBusiness (A) due and payable by any of Seller Sellers prior to Closing, subject, however, to indemnification by Purchaser, as provided in Article IX and (B) as specifically retained by Sellers in this Section 2.02(b) or for in Article VI; (vi) to the extent covered by existing insurance (which Seller is liableinsurance remains in force after Closing pursuant to Section 6.13 hereof), including any interest and/or penalties thereon, all workers’ compensation Liabilities arising prior to the Cut-off TimeClosing (including any claims filed after the Closing relating to occurrences prior to the Closing) in respect of Business Employees and Other Business Employees; (vii) all severance Liabilities, including, but not limited to amounts payable under any severance pay plan adopted by Sellers prior to the Closing, relating to employees and former employees of the Business or Seller’s South Charleston Business but only with respect to such employees and former employees terminated by Sellers prior to the Closing; (viii) all intercompany Indebtedness between any Sellers or between any Seller and any Affiliate of Sellers; (ix) all Liabilities under or with respect to the Retained Plans; (x) the Liabilities of Sellers under the Loyalty Bonus Program; (xi) all Liabilities of Sellers under this Agreement and the Ancillary Agreements; (xii) all Liabilities of Sellers under the Agreement between Mayflower Vehicle Systems, Inc. and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and its Local 3399, dated 20 November 2003; and (iixiii) all Liabilities of Sellers (a) relating to Indebtedness for Borrowed Money or any unemployment compensation other Indebtedness of Sellers (to the extent not included in the determination of Closing Indebtedness), or industrial insurance deposit obligations (b) under factoring arrangements relating to the Property and Employees (collectively, “Employment Obligations”) that arise prior to the Cut-off Time; (iii) any liability the existence of which would constitute a breach of any of Seller’s representations or warranties contained in Article V; and (iv) all liabilities and obligations relating to the Property or operation of the Hotel that arise from acts or events that occur prior to the Cut-off Time, subject to the adjustments and prorations described in Article VIII; and (v) any litigation pending against the Seller or its affiliates, including without limitation the claim asserted by 4th & Pike Building, LLC et al. in King County Superior CourtReceivables. (c) Notwithstanding the foregoing or anything to the contrary, after Closing, Seller shall promptly pay any Excise Taxes and Employment Obligations attributable to periods prior to Closing.

Assumption of Liabilities; Retained Liabilities. (a) Except as otherwise provided in Section 3.04(b) belowUpon the terms and subject to the conditions of this Agreement, and other than with respect to the Retained Liabilities, Purchaser shall assume at unconditionally assume, subject to and effective as of the Closing, and shall pay, perform and discharge after the Closing when due, each of (and pay only) the following obligations specifically identified Liabilities of the Divesting Entities (collectively, the “Assumed Liabilities”): ): (i) Seller’s obligations Liabilities to suppliers for materials and liabilities services relating to the Transferred Assets ordered prior to the Closing in the ordinary course of business consistent with past practices, but delivered or provided thereafter; (ii) Liabilities arising after and relating to periods from and after the Closing Date under any Transferred Contract, or any Shared Contract assigned to Purchaser or any of its Affiliates in accordance with Section 2.03(d), including with respect to the Property performance or non-performance under, or any breach of or default under, any such Transferred Contract or Shared Contract occurring after the Closing Date and including with respect to any amendments, waivers or termination of any such Transferred Contract or Shared Contract occurring after the Closing Date (including, for the avoidance of doubt, the Assumption of Lease); (iii) Environmental Liabilities to the extent arising out of, relating to or otherwise in respect of the occupancy, operation, use or lease of, or any Release of Hazardous Substances at, the Princeton Facility by Purchaser or any of its Affiliates after the Closing Date, including any Environmental Liabilities arising out of, relating to or otherwise in respect of (A) the Release of any Hazardous Substance at or from the Princeton Facility by Purchaser or its Affiliates after the Closing Date, (B) any violation of any Environmental Law by Purchaser or its Affiliates in connection with the occupancy, operation, use or lease of the Princeton Facility after the Closing Date or (C) compliance pursuant to Section 6.16; (iv) Liabilities expressly assumed by Purchaser pursuant to Article VII (the “Assumed Employee Liabilities”); (v) Liabilities for (A) Taxes relating to the Transferred Assets or the operation of the Hotel which this Agreement expressly provides are Princeton Facility for any taxable period beginning after the Closing Date, (B) Purchaser’s share of Transfer Taxes under Section 6.14(d), (C) property and ad valorem Taxes (other than Transfer Taxes) with respect to be assumed by Purchaser; the Transferred Assets for any Straddle Tax Period allocated to the taxable period beginning after the Closing Date pursuant to Section 6.14(c)(i) and (iiD) all liabilities the Assumed Tax Liability; and (vi) Liabilities arising out of, or relating to the Property to, events or operation of the Hotel that first arise occurrences on or after the Cut-off Time, other than Retained Liabilities, subject to Closing under contract or commitments incurred before the adjustments and prorations described in Article VIII and the indemnification provisions of this AgreementClosing as set forth on Schedule 2.04(a)(vi). (b) Purchaser shall have no liability not assume, and shall not be responsible to pay, perform or obligation for discharge, any Liabilities of any Divesting Entity of any kind or nature whatsoever, other than the following Assumed Liabilities (the “Retained Liabilities”): ). The Retained Liabilities include each of the following: (i) federalLiabilities for (A) Taxes of Seller or any of its Affiliates (or any member of a group filing income Tax Returns on a consolidated, state combined, or unitary basis of which Seller or any of its Affiliates is a member); (B) Taxes relating to the Transferred Assets or operation by Seller or its Affiliates of the Princeton Facility for any Pre-Closing Tax Period, including any such Taxes that are not due or assessed until after the Closing Date, but excluding the Assumed Tax Liability; (C) Seller’s share of Transfer Taxes under Section 6.14(d); and local income, franchise, sales or payroll taxes, Excise Taxes or other (D) property and ad valorem Taxes (other than real estate taxes and assessments which shall be prorated as of the Cut-off TimeTransfer Taxes) of Seller or for which Seller is liable, including any interest and/or penalties thereon, arising prior with respect to the CutTransferred Assets for any Straddle Tax Period allocated to the Pre-off Time; Closing Tax Period pursuant to Section 6.14(c)(i); (ii) any unemployment compensation or industrial insurance deposit obligations relating Liabilities expressly retained by Seller pursuant to the Property and Employees (collectively, “Employment Obligations”) that arise prior to the Cut-off Time; Section 7.01; (iii) Liabilities under any liability Contracts that are neither Transferred Contracts nor Shared Contracts; (iv) Liabilities under any Transferred Contracts, or any Shared Contracts that are assigned to Purchaser or any of its Affiliates in accordance with Section 2.03(d), solely to the existence of which would constitute a extent such Liabilities (A) arise on or before, or relate to periods on or before, the Closing Date or (B) arise from or relate to any breach of or default under such Transferred Contract or Shared Contract, as applicable, by any Divesting Entity on or before the Closing Date (including, for the avoidance of doubt, the Assumption of Lease); (v) Liabilities in respect of indebtedness for borrowed money owing or guaranteed by the Divesting Entities, including such Liabilities with respect to the Transferred Assets or the Princeton Facility or any of Seller’s representations or warranties contained its Affiliates’ facilities; (vi) accounts payable of any Divesting Entity; (vii) Environmental Liabilities to the extent arising out of, relating to or otherwise in Article V; respect of the occupancy, operation, use or lease of, or any Release of Hazardous Substances at, the Princeton Facility on or prior to the Closing Date, including any Environmental Liabilities arising out of, relating to or otherwise in respect of (A) the Release of any Hazardous Substance at or from the Princeton Facility on or prior to the Closing Date and (ivB) any violation of any Environmental Law in connection with the occupancy, operation, use or lease of the Princeton Facility on or prior to the Closing Date; (viii) intercompany debts and obligations of the Divesting Entities; (ix) Liabilities arising from or relating to (including Liabilities arising out of or relating to Proceedings in respect of) the leasing, ownership, use, occupancy and operation of the Transferred Assets and the Princeton Facility on or prior to the Closing Date, other than those Liabilities expressly assumed by Purchaser pursuant to Section 2.04(a), including (for the avoidance of doubt) all liabilities Liabilities relating to or arising from (A) the Manufacture of products at, or products Manufactured at, the Princeton Facility prior to the Closing Date, including any partial Manufacture of products or products partially Manufactured at the Princeton Facility, or (B) any violation of applicable Law on or prior to the Closing Date, including any failure to obtain, maintain in effect or comply with any Permit required under applicable Law in connection with the leasing, ownership, use, occupancy and obligations operation of the Transferred Assets or the Princeton Facility on or prior to the Closing Date; (x) Liabilities arising from or relating to any Third Party Claim (other than a Third Party IP Claim) based upon, resulting from or arising out of the operation of the Princeton Facility, or the ownership, occupancy, use, sale, license or lease of the Transferred Assets, in each case, on or prior to the Closing Date; (xi) Liabilities arising from or relating to any Third Party Claim alleging that the operation or use of the Princeton Facility, the Transferred Equipment or the Retained Equipment as operated or used by Seller or any of its Affiliates, in each case, on or prior to the Closing Date, including any claim arising from or relating to any alleged infringement, misappropriation, dilution or other violation by or for Seller or any of its Affiliates of any Intellectual Property of a Third Party on or prior to the Closing Date (any such Third Party Claim, a “Third Party IP Claim”). (xii) Liabilities of Seller or any of its Affiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others; and (xiii) Liabilities to the extent arising out of or relating to the Property or operation of the Hotel that arise from acts or events that occur prior to the Cut-off Time, subject to the adjustments and prorations described in Article VIII; and (v) any litigation pending against the Seller or its affiliates, including without limitation the claim asserted by 4th & Pike Building, LLC et al. in King County Superior CourtExcluded Assets. (c) Notwithstanding the foregoing or anything to the contrary, after Closing, Seller shall promptly pay any Excise Taxes and Employment Obligations attributable to periods prior to Closing.

Assumption of Liabilities; Retained Liabilities. (a) Except as otherwise provided in Section 3.04(b) belowOn and subject to the terms and conditions of this Agreement, Purchaser shall agrees to assume and become responsible for all Assumed Liabilities at Closing and pay the following obligations (“Assumed Liabilities”): (i) Seller’s obligations and liabilities Closing. Purchaser will not assume or have any responsibility, however, with respect to any other Liability of Seller not included within the Property or operation definition of Assumed Liabilities (the Hotel which this Agreement expressly provides are to be assumed by Purchaser; and (ii) all liabilities relating to the Property or operation of the Hotel that first arise after the Cut-off Time, other than Retained Liabilities, subject to the adjustments and prorations described in Article VIII and the indemnification provisions of this Agreement. (b) Purchaser shall have no liability or obligation for the following (“Retained Liabilities”): (i) federal). Seller shall discharge in a timely manner or shall make adequate provision for all of the Retained Liabilities, state and local incomeprovided that Seller shall have the ability to contest, franchisein good faith, sales or payroll taxes, Excise Taxes or other Taxes (any such claim of liability asserted in respect thereof by any Person other than real estate taxes and assessments which shall be prorated as Purchaser. If Seller fails to pay or otherwise satisfy any of the Cut-off TimeRetained Liabilities as they become due, Purchaser may elect to pay any such Retained Liabilities, and any other costs and charges associated with such liabilities, if Purchaser determines, in its sole discretion, that such payment is necessary or desirable to allow Purchaser to utilize the Acquired Assets in its business on an uninterrupted basis; provided, however, that Purchaser shall have provided Seller with not less than ten (10) days’ prior written notice of its intent to pay such Retained Liabilities and related costs, if any, and Seller shall have failed to pay or otherwise satisfy such Retained Liabilities and related costs, or that Seller shall have notified Purchaser in writing within such ten (10) day period that it intends to defend or contest such Retained Liabilities and it fails to discharge said Retained Liabilities and related costs within ten (10) days after such Retained Liabilities and costs are reduced to a final judgment or otherwise become a lien on any assets of Purchaser or the Business. If Purchaser pays any Retained Liabilities or related costs, Purchaser shall have the right to demand payment from Seller or for which Seller is liable, including add any interest and/or penalties thereon, arising prior such amounts to the Cut-off Time; (ii) any unemployment compensation or industrial insurance deposit obligations relating to the Property and Employees (collectively, “Employment Obligations”) that arise prior to the Cut-off Time; (iii) any liability the existence of which would constitute a breach of any of Seller’s representations or warranties contained in Article V; and (iv) all liabilities and obligations relating to the Property or operation principal amount of the Hotel that arise from acts or events that occur prior to the Cut-off Time, subject to the adjustments and prorations described in Article VIII; and Note (v) any litigation pending against the Seller or its affiliates, including without limitation the claim asserted by 4th & Pike Building, LLC et al. in King County Superior Courtdefined below). (c) Notwithstanding the foregoing or anything to the contrary, after Closing, Seller shall promptly pay any Excise Taxes and Employment Obligations attributable to periods prior to Closing.

Assumption of Liabilities; Retained Liabilities. (a) Except Upon the terms and subject to the conditions of this Agreement and effective as of the Closing, Purchaser shall assume and shall pay, perform and discharge when due, (x) any and all obligations, liabilities and commitments of Seller of any nature, whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise and whether due or to become due, arising out of, relating to or otherwise in respect of the Transferred Assets, the Business or the operation or conduct of the Business on or after the Closing Date, and (y) each of the following obligations, liabilities and commitments of Seller, in each case except as otherwise provided in Section 3.04(b) belowthis Agreement (collectively, Purchaser shall assume at Closing and pay the following obligations (“Assumed Liabilities”): ): (i) Seller’s obligations all subscription and other product fulfillment commitments and advertising commitments of Seller in effect on the Closing Date; (ii) all obligations, liabilities and commitments of Seller arising after the Closing Date under the Transferred Contracts and the Transferred Permits; (iii) all obligations, liabilities and commitments of Seller in respect of Claims for refunds, allowances, cancellations, exchanges, returns and chargebacks with respect to the Property or operation Business; (iv) all obligations, liabilities and commitments of the Hotel which this Agreement expressly provides are Seller to be assumed by Purchaser; and (ii) all liabilities relating Purchaser pursuant to the Property or operation of the Hotel that first arise after the Cut-off Time, other than Retained Liabilities, subject to the adjustments and prorations described in Article VIII and the indemnification provisions of this Agreement.VI hereof; (b) Purchaser shall have no liability or obligation for the following (“Retained Liabilities”): (i) federal, state and local income, franchise, sales or payroll taxes, Excise Taxes or other Taxes (other than real estate taxes and assessments which shall be prorated as of the Cut-off Time) of Seller or for which Seller is liable, including any interest and/or penalties thereon, arising prior to the Cut-off Time; (ii) any unemployment compensation or industrial insurance deposit obligations relating to the Property and Employees (collectively, “Employment Obligations”) that arise prior to the Cut-off Time; (iii) any liability the existence of which would constitute a breach of any of Seller’s representations or warranties contained in Article V; and (iv) all liabilities and obligations relating to the Property or operation of the Hotel that arise from acts or events that occur prior to the Cut-off Time, subject to the adjustments and prorations described in Article VIII; and (v) any litigation pending against all intercompany debts and obligations of Seller to its affiliates arising from the Seller or its affiliates, including without limitation the claim asserted by 4th & Pike Building, LLC et al. in King County Superior Court.arrangements set forth on Schedule 1.02(a)(v); and (cvi) Notwithstanding all such other obligations, liabilities and commitments of Seller (including accounts payable, deferred revenue and accrued liabilities) (A) included or reflected on the foregoing Assets and Liabilities Statement or anything to (B) incurred by Seller in the contrary, ordinary course of business after Closing, Seller shall promptly pay any Excise Taxes the date of the Assets and Employment Obligations attributable to periods prior to ClosingLiabilities Statement and reflected on the Statement.

Assumption of Liabilities; Retained Liabilities. (a) Except Upon the terms and subject to the conditions of this Agreement, Purchaser shall, except as otherwise provided set forth in Section 3.04(b2.12 of the Transition Services Agreement, unconditionally assume, effective as of the Closing, and shall pay, perform and discharge when due, any and all Liabilities of Seller and its Affiliates (other than the Transferred Entity) belowto the extent arising out of, Purchaser shall assume at relating to or otherwise in respect of the ownership, use, sale or license of the Transferred Assets on or after the Closing and pay Date or the following obligations operation or conduct of the Business on or after the Closing Date (collectively, the “Assumed Liabilities”): ). The Assumed Liabilities shall include the following: (i) Seller’s obligations all Liabilities to suppliers for materials and liabilities services relating to the Transferred Assets to be delivered or provided on or after the Closing Date, and all Liabilities to customers under purchase orders for any units of Product that have not yet been shipped as of the Closing Date; (ii) all Liabilities to the extent arising out of or relating to any unit of Product Sold by or on behalf of Purchaser or its Affiliates on or after the Closing Date, including Liabilities to the extent arising out of or relating to Product Liability Claims in relation to any such unit of Product; (iii) all Liabilities for any credits or rebates in respect of any unit of Product Sold by or on behalf of Purchaser or its Affiliates on or after the Closing Date, and all Liabilities arising out of or relating to any recall, market withdrawal or post-sale warning in respect of any unit of Product Sold by or on behalf of Purchaser or its Affiliates on or after the Closing Date (except to the extent otherwise provided in the Supply Agreement or Transition Services Agreement); (iv) all Liabilities under (A) any Transferred Contract; provided that all Liabilities under any Delayed Transfer Contract shall be assumed by Purchaser on the Delayed Transfer Contracts Transfer Date, in accordance with the terms and conditions of Section 2.12 of the Transition Services Agreement or (B) any Shared Contract to be assigned to Purchaser or its Affiliates in accordance with Section 2.03(c), in each case, other than for breaches by Seller or its applicable Affiliates thereof prior to the Closing Date; (v) all Liabilities with respect to any Proceeding asserted by any Third Party with respect to the Property Business or operation any of the Hotel which this Agreement Transferred Assets, to the extent that such Proceeding (b) At the Closing, neither Purchaser nor any of its Affiliates shall assume, and Seller or its applicable Affiliate (other than the Transferred Entity) shall retain, and shall pay, perform and discharge when due any and all Liabilities of Seller or any of its Affiliates (other than, except as otherwise expressly provides are set forth below and in the case of clause (vi), the Transferred Entity), except to be assumed by Purchaserthe extent included in the Assumed Liabilities (the “Retained Liabilities”), including: (i) all Liabilities to the extent arising out of, relating to, or otherwise in respect of the ownership, use, sale or license of the Transferred Assets prior to the Closing Date or the operation or conduct of the Business prior to the Closing Date; and (ii) all liabilities Liabilities to the extent arising out of or relating to the Property any unit of Product Sold by or operation of the Hotel that first arise after the Cut-off Time, other than Retained Liabilities, subject to the adjustments and prorations described in Article VIII and the indemnification provisions of this Agreement. (b) Purchaser shall have no liability or obligation for the following (“Retained Liabilities”): (i) federal, state and local income, franchise, sales or payroll taxes, Excise Taxes or other Taxes (other than real estate taxes and assessments which shall be prorated as of the Cut-off Time) on behalf of Seller or for which Seller is liable, including any interest and/or penalties thereon, arising its Affiliates prior to the Cut-off Time; (ii) any unemployment compensation Closing Date, including Liabilities to the extent arising out of or industrial insurance deposit obligations relating to the Property and Employees (collectively, “Employment Obligations”) that arise prior Product Liability Claims in relation to the Cut-off Timeany such unit of Product; (iii) all Liabilities to suppliers for materials and services relating to the Transferred Assets delivered or provided prior to the Closing Date, and all Liabilities to customers under purchase orders for any liability units of Product shipped prior to the existence of which would constitute a breach of any of Seller’s representations or warranties contained in Article VClosing Date; and (iv) all liabilities Liabilities for (A) Transfer Taxes allocated to Seller pursuant to Section 8.01, and obligations (B) Taxes arising out of, relating to the Property or operation in respect of the Hotel that arise Transferred Assets or the Business for any Pre-Closing Tax Period determined, in the case of a Straddle Tax Period, in accordance with Section 8.03(b); (v) all Liabilities to the extent arising out of, relating to or otherwise in respect of the ownership, use, sale or license of the Excluded Assets; (vi) all Liabilities in respect of Indebtedness; (vii) all accounts payable of Seller or any of its Affiliates (including the Transferred Entity) arising from acts or events that occur the Exploitation of the Product prior to the CutClosing Date (the “Pre-off Time, subject to the adjustments and prorations described in Article VIIIClosing Accounts Payable”); and (vviii) all Liabilities for (A) any litigation pending against the Seller or its affiliatesexpenses (including all fees and expenses of counsel, including without limitation the claim asserted by 4th & Pike Buildingaccountants, LLC et al. in King County Superior Court. (c) Notwithstanding the foregoing or anything investment bankers, advisors, experts and consultants to the contrarySeller, after Closing, Seller shall promptly pay any Excise Taxes and Employment Obligations attributable to periods prior to Closing.its

Assumption of Liabilities; Retained Liabilities. (a) Except as otherwise provided in Section 3.04(b3.02(b) below, Purchaser the Company shall assume at Closing and pay the following obligations (“Assumed Liabilities”): ): (i) SellerContributor’s obligations and liabilities with respect to the Property Contributing Entities or operation of the Hotel Hotels which this Agreement expressly provides are to be assumed by Purchaserthe Company; and (ii) all liabilities relating to the Property or operation of the Hotel Hotels that first arise after the Cut-off Time, other than Retained Liabilities, subject to the adjustments and prorations described in Article VIII and the indemnification provisions of this Agreement. (b) Purchaser The Company shall have no liability or obligation for the following (“Retained Liabilities”): (i) federal, state and local income, franchise, sales or payroll taxes, Excise Taxes or other Taxes (other than real estate taxes and assessments which shall be prorated as of the Cut-off Time) of Seller Contributor or for which Seller Contributor is liable, including any interest and/or penalties thereon, arising attributable to any period prior to the Cut-off Time; (ii) any unemployment compensation or industrial insurance deposit obligations relating to the Property and Employees (collectively, “Employment Obligations”) that arise prior to the Cut-off Time; (iii) any liability the existence of which would constitute a breach of any of SellerContributor’s representations or warranties contained in Article V; and (iv) all liabilities and obligations relating to the Property or operation of the Hotel Hotels that arise from acts or events that occur prior to the Cut-off Time, subject to the adjustments and prorations described in Article VIII; and (v) any litigation pending against the Seller VIII for those items which such Article provides are to be adjusted or its affiliates, including without limitation the claim asserted by 4th & Pike Building, LLC et al. in King County Superior Courtprorated as provided therein. (c) Notwithstanding the foregoing or anything to the contrary, after Closing, Seller shall promptly pay any Excise Taxes and Employment Obligations attributable to periods prior to Closing.

Assumption of Liabilities; Retained Liabilities. (a) Except as otherwise provided Subject to the terms and upon the conditions set forth in Section 3.04(b) belowthis Agreement, Purchaser on the Closing Date, Seller shall assign to Buyer and Buyer shall assume at Closing from Seller, and thereafter pay the following obligations (“Assumed Liabilities”): (i) Seller’s obligations and liabilities with respect to the Property or operation of the Hotel which this Agreement expressly provides are to be assumed by Purchaser; and (ii) perform when due all liabilities relating to the Property or operation and obligations of the Hotel that first arise after the Cut-off TimeSeller, other than Retained Liabilities, subject including without limitation (i) the Accounts Payable and other Liabilities of Seller assumed pursuant to this Agreement from and after the Effective Time, except those relating to the adjustments Excluded Assets or Retained Liabilities, (ii) all Liabilities under the Assumed Contracts, including the Assigned Employment Agreements, arising after the Effective Time, (iii) any and prorations described all Tax with respect to the operation of the Business arising out of, or attributable to, any period of time after the Effective Time, and (iv) any Liabilities to the extent of the amount of credit received by Buyer under Section 2.2 (collectively, the “Assumed Liabilities”). For avoidance of doubt, all performance and stay bonuses and other compensation payable by Seller in Article VIII and connection with the indemnification provisions of this AgreementTransaction will not constitute Assumed Liabilities. (b) Purchaser Buyer does not assume, and will not be deemed by the execution and delivery of this Agreement or the consummation of the Transaction to have assumed, the Liabilities set forth in this Section 1.3(b), which shall have no liability occurred, arisen or obligation for existed on or before the following Closing Date, which Liabilities, if ever in existence, shall continue to be Liabilities of Seller (individually, a “Retained Liability” and collectively, the “Retained Liabilities”): ): (i) federalthe debts, state and local income, franchise, sales obligations or payroll taxes, Excise Taxes or other Taxes (other than real estate taxes and assessments which shall be prorated Liabilities of Seller arising out of any Proceeding pending as of the Cut-off TimeClosing Date or arising out of or relating to matters or events occurring on or prior to the Closing Date (whether or not such claim is then asserted), including, without limitation, any claims for personal injury (including worker’s compensation or otherwise) or property damage; (ii) the contingent Liabilities of Seller of any kind arising or existing on or prior to the Closing Date, including, but not limited to, claims or Proceedings, which are currently or hereafter become, the subject of claims or Proceedings; (iii) the debts, obligations or Liabilities of Seller for which Seller is liable, Taxes or assessments (including any interest and/or and penalties thereon, if any) of any kind whatsoever arising from, based upon or related to the sale, transfer or delivery of the Assets pursuant to this Agreement; (iv) the debts, obligations or Liabilities of Seller, whether absolute, accrued, contingent or otherwise, for all Taxes arising or occurring prior to the Cut-off Time; Closing Date, including, but not limited to any debts, obligations or Liabilities arising out of, relating to, or resulting from and the Minnesota Department of Revenue Audit disclosed on Schedule 4.9(b); (iiv) any unemployment compensation except as expressly provided for herein or industrial insurance deposit by Law, the debts, obligations or Liabilities of Seller (A) to Solbright, Inc., (B) relating to the Property employment or termination of employment of any Person by Seller, (C) relating to all amounts accrued and payable to Transferred Employees as of the Closing Date by Seller in accordance with Section 11.7, (collectivelyD) at any time arising under or pursuant to or in connection with any Company Plans at any time maintained, “Employment Obligations”sponsored or contributed to or required to be contributed to by Seller or any of its Affiliates or with respect to which Seller or any of its Affiliates has or could have any liability or obligation, including but not limited to (1) the Seller 2007 Amended and Restated Stock Option Plan, and (2) any payments for bonuses under any Seller bonus plan that arise may be accrued and payable as of the Closing Date, including the Internet Broadcasting Systems, Inc. Management Incentive Plan adopted August 8, 2013, and (E) relating to Seller’s agreement with Xxxxxxx for human resources services; (vi) any debts, obligations or Liabilities in respect of the borrowing of money or issuance of any note, bond, indenture, loan, credit agreement or other evidence of indebtedness or direct or indirect guaranty or assumption of indebtedness, liabilities or obligations of others, whether or not disclosed in this Agreement or otherwise of Seller, including, without limitation, any obligations or liabilities of Seller, to any of its Affiliates or to any Person affiliated therewith, if any; (vii) any Liabilities or obligations of Seller arising out of any violation of Laws occurring on or before the Closing Date, including but not limited to liabilities arising under Environmental Laws, to the extent arising from or relating to facts, events or conditions which were in existence or occurred on or prior to the Cut-off TimeClosing Date, irrespective of whether such Liabilities attach to Seller or Buyer or any other Person in the first instance; (viii) Liabilities in respect of Seller Transaction Expenses; (ix) Seller’s obligations under this Agreement and the Related Documents; and (iiix) any liability the existence Liabilities or obligations arising out of which would constitute a breach of any of Seller’s representations or warranties contained in Article V; and (iv) all liabilities and obligations relating to the Property Excluded Assets or operation of the Hotel that arise from acts or events that occur prior to the Cut-off TimeRetained Liabilities. Seller shall timely perform and discharge in accordance with their respective terms all Retained Liabilities and shall, subject to the adjustments and prorations described in Article VIII; and 9 hereof (v) any litigation pending against the Seller or its affiliates, including without limitation the claim asserted by 4th & Pike Building, LLC et al. in King County Superior Court. (c) Notwithstanding the foregoing or anything except with respect to the contraryMinnesota Department of Revenue Audit which shall not be subject to Article 9), after Closing, Seller shall promptly pay any Excise Taxes indemnify and Employment Obligations attributable to periods prior to Closinghold Buyer harmless against all such Liabilities.