Common use of Assumption of Liabilities Clause in Contracts

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of the Subject Assetsthis Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding Acquisition Subsidiary agrees, effective at the time of the Closing, to assume all obligations and all liabilities and obligations incurred by of Seller since the date of any kind, character or description, arising exclusively or primarily out of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time conduct of the ClosingBusiness (the "ASSUMED LIABILITIES"), provided, however, that Buyer shall not assume and shall not pay except for the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for hereinExcluded Liabilities, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder;following: (iia) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after Accounts payable which are either disclosed on the transactions contemplated in this Agreement Most Recent Balance Sheet or incurred by Seller in connection with this Agreement the ordinary course of operating the Business between January 1, 2004 and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityClosing; (iiib) Liabilities and obligations related to customer deposits which are either disclosed on the Most Recent Balance Sheet or incurred by Seller in the ordinary course of Seller to its dissenting Shareholdersoperating the Business between January 1, if any, under 2004 and the Massachusetts Business Corporation LawClosing; (ivc) Liabilities Accrued payroll (including bonuses in the ordinary course of business) and accrued vacation and sick time which are either disclosed on the Most Recent Balance Sheet or incurred in the ordinary course of operating the Business between January 1, 2004 and the Closing; (d) Other accrued liabilities relating to the Business (of the nature included in the Most Recent Balance Sheet in the line item "Other accrued liabilities") which are either disclosed on the Most Recent Balance Sheet or incurred by Seller with respect in the ordinary course of operating the Business between January 1, 2004 and the Closing; (e) Indebtedness to any optionscertain related parties of Seller, warrantsafter giving effect to the transfer of the Excluded Real Property, agreements subject to a mortgage or convertible or other rights deed of trust securing the Real Estate Facility, to acquire any shares the holder(s) of its capital stock such indebtedness in exchange for the cancellation of any classa portion of such indebtedness (the "RELATED PARTY DEBT"), as more particularly described in SCHEDULE 2.3(e) of the Disclosure Schedule; and (vf) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of Seller's obligations under the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAssumed Contracts.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of this Agreement and in reliance upon the Subject Assetsrepresentations, warranties and agreements herein set forth, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding agrees, effective at the time of the Closing, to assume, timely perform and timely discharge only the following Liabilities with respect to the Business and the Transferred Assets (collectively, the “Assumed Liabilities”): (a) all liabilities executory obligations of QS under, or arising after the Closing out of, the Assumed Contracts, including those necessary to enable Buyer to recognize the unearned revenue identified on the Balance Sheet (“Unearned Revenue”); (b) all obligations of QS with respect to product warranties and obligations incurred by Seller since service contracts related to the date Assumed Contracts (collectively, the “Assumed Warranties”); (c) all Liabilities of the Base Business relating to the Transferred Assets (other than Excluded Liabilities) to the extent resulting from events or conditions occurring or arising on or after the Closing Date; and (d) all Liabilities of QS related to Accounts Payable, Accrued Commissions, Accrued Payroll, Employee vacation pay, and Unearned Revenue to the extent such accruals are set forth in the Closing Balance Sheet. (e) Notwithstanding the foregoing, in the event that the Closing Balance Sheet shall reflect current assets and property, plant and equipment of less than $190,000, current liabilities of more than $262,500 or unearned revenue of less than $1,760,000, then the Assumed Liabilities shall be reduced by an amount sufficient to ensure that the total dollar amount of Assumed Liabilities, net of the value of the Transferred Assets, shall not exceed $2,050,000 (such amount being the “Liability Adjustment”); provided that no such adjustment shall be required in the ordinary course of business and consistent with event that the terms of this Agreement which are outstanding at the time amount of the ClosingLiability Adjustment so calculated shall be less than $50,000. For the avoidance of doubt, Buyer and Sellers agree that in the event the Liability Adjustment is equal to or exceeds $50,000, one or more liabilities in the amount of Liability Adjustment and previously included as an Assumed Liability shall be retained by Sellers and shall become an Excluded Liability; provided, however, Sellers shall in no event be obligated to retain any Assumed Liability that Buyer consists solely of a performance obligation as opposed to an obligation to pay money (a “Performance Liability”). In the event the Assumed Liabilities other than Performance Liabilities are insufficient to effect the adjustment contemplated by this Section, the Buyers shall be entitled to a set-off against the Promissory Note in the amount of the Liability Adjustment not assume and eligible to be retained by Sellers in accordance with the preceding sentence, which set off shall not pay be applied to payments under the following liabilities: (i) Liabilities incurred by Seller Promissory Note in connection with this Agreement and the transactions manner provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities9.12.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to and upon the sale terms and purchase of conditions contained herein, at the Subject AssetsClosing, Buyer Purchaser shall assume and agree to pay or discharge when due in accordance with their respective terms become responsible for all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closingdebts, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in Sellers relating to the ordinary course of business and consistent with Assets or the terms of this Agreement which are outstanding at the time operation of the ClosingBusiness, providedwhether known or unknown, howeverfixed or contingent, that Buyer shall not assume and shall not pay asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, other than the following liabilitiesExcluded Liabilities (the "Assumed Liabilities"), including, without limitation: (i) Liabilities incurred all debts, liabilities, and obligations arising from, or related to, (A) (1) the development, manufacture, advertising, marketing, distribution, sale, or use (including, without limitation, any related health effects) of, (2) the exposure to, or (3) warnings regarding cigarettes developed, manufactured, advertised, marketed, distributed or sold by Seller in connection with this Agreement and either of the transactions provided for hereinSellers or any of their Subsidiaries under the Brands ("Transferred Tobacco Matters"), (B) any past, present or future claim alleging any violation of any law, statute, ordinance, rule or regulation related to Transferred Tobacco Matters, including, without limitation, counsel and accountant feesthose described in Schedule 2.7, and expenses pertaining to the performance by Seller of its obligations hereunder; or (iiC) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein)claims, including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidatedlitigation, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actionsproceedings, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out actions of third-party claims)any kind, including, without limitation, interestbrought by or before any Governmental Authority relating to the Transferred Tobacco Matters, penaltiesviolations described in clause (B) above, reasonable attorney or any substantially similar subject matter, or substantially similar or related factual or legal allegations or claims (the debts, liabilities and accountant fees obligations referred to in this clause (i), collectively, the "Transferred Tobacco Liabilities"); (ii) all debts, liabilities, and obligations relating to the Transferred Contracts; (iii) all amounts paid in investigationdebts, defense liabilities, and obligations to pay wages, salaries, bonuses, severance or settlement retention payments, and payroll Taxes to Transferred Employees; (iv) subject to the provisions of any Section 10.5, all debts, liabilities, and obligations for Taxes (other than payroll Taxes assumed pursuant to subsection (iii) above) arising out of or relating to the operation of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as Business or the “Liabilities,” ownership of the Assets arising or accruing after the Closing Date and the obligations and liabilities which are under the proviso of the first sentence in Section 10.5; (v) subject (with respect to Escrow Obligations arising during the Closing Year) to the provisions of Section 5.7, all debts, liabilities and obligations related to the Business under any Qualifying Statutes, including, but not assumed by Buyer limited to, any Escrow Obligations, arising or accruing after the Closing Date with respect to sales of cigarettes under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said Brands; (vi) all debts, liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Sellerand obligations set forth on Annex E; and (vii) all other debts, liabilities, and nothing herein shall prevent any party from contesting obligations reflected as current liabilities in good faith with any third party any the calculation of said liabilitiesthe Final Net Working Capital of the Business.

Assumption of Liabilities. Upon On the sale terms and purchase subject to the conditions contained herein and in the Ancillary Documents (including the retention of all rights and remedies under Article XVII of the Subject AssetsMaster Purchase Agreement and under Articles VII and VIII hereto), Buyer the Purchaser shall assume and agree to pay or pay, perform and discharge when due in accordance with their respective terms all of the following obligations, debts and liabilities of the Seller shown or and no others (collectively, the “Assumed Liabilities”): (a) all accounts payable and other accrued expenses (other than any intracompany accounts payable) as of the Closing Date, in each case that relate to the Assets, as reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderAccounting Records; (iib) Taxes with respect to Mortgage Loans acquired by Xxxxxx Xxx, Xxxxxxx Mac or Xxxxxx Mae from the Seller, the Failed Thrift or IndyMac Federal (as defined in Section 2.08 hereof) “GSE Mortgage Loans”), all obligations of the Seller (whether relating to periods before or under the Servicing Agreements from and after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityClosing Date; (iiic) Liabilities of Seller with respect to its dissenting ShareholdersMortgage Loans other than GSE Mortgage Loans, if any, all obligations imposed on the servicer under the Massachusetts Business Corporation Law;Servicing Agreements from and after the Closing Date; and (ivd) Liabilities all obligations of the Seller with respect to any options(i) the lawsuits, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether claims or not arising out of third-party claimsdemands listed on Schedule 2.03(c), includingand (ii) any additional lawsuits, without limitationjudgments, interestclaims or demands involving foreclosures, penaltiesbankruptcies, reasonable attorney fraud and accountant fees misrepresentation, contract and all amounts paid in investigationmortgage disputes, defense or settlement of liens, title disputes, regulatory agency/fair lending, property condition, forfeiture, partition, easement, condemnation and eminent domain, probate, contested foreclosures, tax sale, mechanic's liens, elder abuse and stop notice claims with respect to any of the foregoing. The liabilities Assets, but only to be assumed the extent any such additional lawsuit, judgment, claim or demand is comparable in nature, scope and substance to those listed on Schedule 2.03(c), as determined by Buyer under this Agreement are hereinafter sometimes referred the Seller in its reasonable judgment (as evidenced by written notice thereof given to as the “Liabilities,” Purchaser), if such determination is made (and such notice is provided) within sixty (60) days after the Closing Date, or by the mutual agreement of the Purchaser and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilitiesif such determination is after such sixty (60)-day period.

Assumption of Liabilities. Upon On the sale terms, and purchase subject to the conditions, set forth in this Agreement, at the Closing, the relevant Subsidiary of the Subject AssetsPurchaser to which the Purchaser has assigned the right to purchase assets of an entity that is a member of the Seller pursuant to Section 10.5 (or, Buyer if the Purchaser has made no such assignment, the Purchaser) shall assume assume, effective as of the Closing, and agree to pay or shall timely perform and discharge when due in accordance with their respective terms all liabilities terms, the following Liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time such entity that is a member of the ClosingSeller (collectively, and the “Assumed Liabilities”): (a) all liabilities and obligations Liabilities incurred by Seller since after the date Closing Date in connection with the ownership or operation of the Base Balance Sheet Business, in each case to the extent based on facts and circumstances first arising after the Closing; (b) all Liabilities under the Purchased Contracts, in each case to the extent based on facts and circumstances first arising after the Closing; (c) all Liabilities assumed under Section 7.9; (d) 50% of all Transfer Taxes to the extent provided in Section 10.1; (e) all Liabilities under Transferred Real Property Leases, in each case to the extent based on facts and circumstances first arising after the Closing; (f) Liabilities under the BarCap APA arising from the exploitation or use after the Closing Date by the Purchaser or its Subsidiaries after the Closing Date of the XXXXXX and XXXXXX BROTHERS names and any logos containing such names in the ordinary course Business and other non-Xxxx intellectual property used after the Closing Date in or covering such Business; (g) Liabilities under the BarCap TSA arising from the Purchaser’s or its Subsidiaries’ receipt or use after the Closing Date of business services provided thereunder as well as the obligations as an assignee in part of the BarCap TSA to provide services thereunder and consistent otherwise comply with the applicable terms of this Agreement which are outstanding at that agreement from and after the time Closing Date; (h) the unfunded amount of the Closing, provided, however, Parent’s or its Affiliates’ general partner or special limited partner capital commitments associated with the Funds that Buyer shall not assume and shall not pay are included in the following liabilities:Business for periods commencing after the Closing Date; (i) all Liabilities incurred by Seller described in connection with this Agreement clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) of the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining definition of “Closing Cash Target” to the performance by Seller extent such Liabilities are taken into account in determining the Final Closing Cash Target and all Liabilities described in the definition of its obligations hereunder; (ii) Taxes (as defined Closing Other Liabilities Adjustment to the extent such Liabilities are taken into account in Section 2.08 hereof) of Seller (whether relating to periods before or after determining the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Final Closing Other Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classAdjustment; and (vj) all Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claimslisted on Schedule 2.3(j), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale terms and purchase of conditions ------------------------- set forth herein, at the Subject AssetsClosing, Buyer shall assume and agree to pay or timely pay, honor and discharge when due in accordance with their respective terms all liabilities the following liabilities, obligations and commitments of Seller shown or reflected on the Base Balance Sheet (which are outstanding at collectively referred to as the time "Assumed Liabilities"): ------------------- (a) All trade payables of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Subsidiaries arising in the ordinary course of business; (b) Seller's obligations under Contracts entered into in the ordinary course of business; (c) Seller's obligations under Contracts entered into outside the ordinary course of business and consistent except for (i) Contracts with IFCO or ------ --- its Affiliates, (ii) employment agreements or similar agreements for services, (iii) agreements providing for employee benefits or other benefits contemplated by the terms definition of this Agreement which are outstanding "Plans" in Section 2.2(f), (iv) Contracts entered into at the time direction of -------------- IFCO or IFCO NA, and (v) loan agreements and related agreements for money borrowed by IFCO or IFCO NA (including but not limited to the Closingloan by a bank syndicate led by Bank One, N.A. and IFCO's Senior Subordinated Notes); (d) Leases and subleases for the Real Property set forth on Schedule -------- 2.3(c); ------ (e) Leases for personal property relating exclusively to the Business; (f) Leases for the Vehicles; and (g) That certain Promissory Note for $176,502.58 payable by Xxxxxxxx Lumber Co. to General Electric Capital Corporation, and that certain Master Security Agreement dated June 29, 2000, by and between General Electric Capital Corporation, as the secured party, and Xxxxxxxx Lumber Co., as the Debtor. provided, however, that Buyer such assumption of liabilities as set forth in -------- ------- subparagraphs (b), (c) (d) and (e) above shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining be only to the performance by extent to be performed, paid or discharged after the Closing Date, Buyer not assuming (and not being responsible for) any obligation of Seller under such agreements due or accruing prior to the Closing Date. Each respective Seller shall be responsible for paying, performing and discharging all of its liabilities and obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after other than the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Assumed Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) On the sale and purchase of the Subject AssetsClosing Date, Buyer Purchaser shall assume and agree to pay or discharge when due from and after the Closing all of the following obligations with respect to the Business in accordance with their respective terms terms, but only to the extent that such obligations do not constitute Excluded Liabilities (the "Assumed Liabilities"): (i) Any and all liabilities, obligations, and commitments arising out of all contracts, arrangements, licenses, leases, and other agreements relating to the Business (other than Excluded Assets), excluding, however, liabilities of Seller shown or reflected on and obligations relating to any breach by the Base Balance Sheet which are outstanding at Company thereof occurring prior to the time Closing Date; and (ii) The trade account payables and accrued liabilities set forth in the calculation of the ClosingClosing Date Working Capital. (b) Notwithstanding any provision of this Agreement to the contrary, Purchaser shall not assume any liabilities, obligations, or commitments of the Company other than the Assumed Liabilities, and all liabilities such other liabilities, obligations, and obligations incurred commitments shall be retained by Seller since the date Company (the "Excluded Liabilities"). Without limiting the generality of the Base Balance Sheet in foregoing, none of the ordinary course of business and consistent with the terms following shall be Assumed Liabilities for purposes of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilitiesAgreement: (i) Liabilities incurred Except as provided in Section 1.7(a)(ii), all trade accounts payable, accrued payroll, accrued employee benefits, including accrued vacation and sick leave and accrued post retirement and post employment benefits, accrued taxes, and all other accrued expenses relating to the Business; (ii) Any liabilities or obligations for borrowed money or evidenced by Seller in connection with this Agreement bonds, debentures, notes, drafts, or similar instruments; (iii) Any and all liabilities, obligations, or commitments arising out of any and all contracts, arrangements, licenses, leases, and other agreements that are Excluded Assets; (iv) Subject to Section 3.1, any and all Taxes (whether pursuant to existing laws and regulations or laws and regulations subsequently enacted by any Governmental Authority) which arise from (A) the operation of the Business on or prior to the Closing Date; (B) the ownership of the Assets on or prior to the Closing Date; or (C) the consummation of the transactions provided contemplated herein; (v) Any liabilities or obligations relating to employees of the Business while employed by the Company, including all liabilities or obligations relating to any claims by employees of the Business, whether pending as of the Closing Date or arising after the Closing Date, due to acts, alleged acts, or omissions of the Company under any federal labor or employment laws or state laws relating to labor relations, equal employment, fair employment practices, entitlements, prohibited discrimination, or other employment practices or otherwise relating to or arising out of the employment relationship with the Company or the termination thereof; (vi) All liabilities or obligations under any employment, severance, retention, or termination agreement between the Company and any of its employees; (vii) Any liabilities or obligations relating to any of the Plans or relating to payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, or any other employee benefits of any kind for hereinemployees of the Company; (viii) Except to the extent reserved for in the calculation of Closing Date Working Capital, any liabilities or obligations with respect to any actions, suits, proceedings, or possible claims, whether such actions, suits, proceedings, or possible claims are currently pending, threatened, contingent, subsequently arise, or otherwise, in any way relating to the conduct of the Business on or prior to the Closing Date, including, without limitation, counsel and accountant feesany actions, and expenses pertaining suits, proceedings, or possible claims relating to the performance use by Seller the Company of its obligations hereunderthe trademark "Jem and the Holograms" prior to the Closing Date; (iiix) Taxes (as defined Except to the extent reserved for in Section 2.08 hereof) the calculation of Seller (whether Closing Date Working Capital, any and all liabilities or obligations arising from or in connection with warranty claims or product liability claims relating to periods before products manufactured or after sold by the transactions contemplated Company prior to the Closing Date; (x) Any liabilities of the Company for Environmental Damages arising on or prior to the Closing Date, whether or not disclosed in the schedules to this Agreement or otherwise known to Sellers, Purchaser, or Delta; (xi) All costs, expenses, liabilities, or obligations incurred by Seller in connection with the Company incident to the negotiation and preparation of this Agreement and its performance and compliance with the transactions provided for agreements and conditions contained herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iiixii) Liabilities All liabilities and obligations of Seller the Company relating to its dissenting Shareholdersuse by the Company of Intellectual Property prior to the Closing Date, if anywhich Intellectual Property is not owned or licensed by the Company, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect relating to any optionssales by the Company of licensed products prior to the Closing Date in breach of the terms of the applicable license agreement, warrants, agreements or convertible or other rights relating to acquire any shares of its capital stock of any classsales by the Company prior to the Closing Date in territories for which the Company is not licensed; and (vxiii) Liabilities in connection with Any liabilities or obligations relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAssets.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon 4.1.1 Except as otherwise provided in Section 4.1.2, Seller shall transfer the sale Purchased Assets to Purchaser free and clear of all Encumbrances (except for Permitted Encumbrances) and without any assumption of liabilities and obligations, and Purchaser shall not, by virtue of its purchase of the Subject Purchased Assets, Buyer assume or become responsible for any liabilities or obligations of Seller or any other Person. For purposes of this Agreement the phrase “liabilities and obligations” shall include, without limitation, any direct or indirect indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation or responsibility, fixed or unfixed, known or unknown, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured. 4.1.2 On the Closing Date, Purchaser shall acquire the Purchased Assets subject only to, and shall assume and agree to otherwise pay or discharge when due in accordance with their respective terms all only, the following liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closingand obligations, and all excluding any liabilities and obligations incurred by to Affiliates of Seller since and excluding those set forth in Section 4.2 below (“Assumed Liabilities”): (a) all obligations of Seller accruing subsequent to the date Closing Date under the Real Property Leases, provided that the rights thereunder have been duly and effectively assigned to Purchaser; (b) except as provided in Section 12.10, all obligations of Seller accruing subsequent to the Base Balance Sheet Closing Date under Leased Equipment and Machinery provided that the rights there under have been duly and effectively assigned to Purchaser; (c) all obligations of Seller accruing after the Closing Date under the Licenses and Permits, provided that the rights thereunder have been duly and effectively assigned to Purchaser; (d) all obligations to complete Work in Process Jobs, provided that the representations and warranties contained in Section 6.13 are true, accurate and complete and there is no default or event of default under or pursuant to any such Work in Process Jobs; and (e) Payables, Accrued Expenses and Deferred Revenue set forth on the books of Seller at the Closing Date and arising in the ordinary course of business Business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller extent deducted from Asset Value for purpose of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiescalculating Purchase Price.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale ASAP hereby assumes, and purchase agrees to pay, observe and perform all of the Subject Assetsduties, Buyer shall assume obligations, terms, provisions and agree to pay or discharge when due in accordance with their respective terms covenants of all of Company's burdens, debts, obligations and liabilities of Seller shown every nature and kind, whether liquidated or reflected on the Base Balance Sheet which are outstanding at the time contingent, xxxxxx or inchoate, known or unknown, including but not limited to Company's accounts and trade payables, accrued expenses, payroll liabilities, vacation and sick pay accruals, deferred revenue, customer deposits, Yuan Loans, loans from Xxxxxxx Xxx, vendor and customer claims, obligations under any contracts, agreement, instruments, licenses and leases, accrued salaries and benefits, taxes of any kind or nature (including all taxes of the Closing, and all liabilities and obligations incurred by Seller since Company arising out of or with respect to the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with transactions under this Agreement and the transactions provided for hereinDistribution), filings made with any regulatory agencies, fines and penalties, obligations, damages or expenses (including fines and penalties) arising as a result of the Company's failure to comply with any laws, rules or regulations applicable to the Company or the Business (including, without limitation, counsel any and accountant feesall laws, rules and regulations under and with respect to the Securities Act of 1933, as amended, and expenses pertaining to the performance by Seller Securities Exchange Act of its obligations hereunder; (ii) Taxes (1934, as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinamended), employment matters and benefits (including any liability for Taxes and all liabilities arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to the termination of the Company's employees under this Agreement whether for severance, health care insurance continuation or any optionsother matter), warrantsemployment and consulting contracts, agreements debt, subordinated debt, claims made by any past or convertible or current holders of the Company's securities, warranties and other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, customer claims, actions and proceedings, demandspending or threatened, assessments and judgments, costs, losses, liabilities, damagesobligations or claims, deficiencies and expenses (whether or not presently asserted, arising out of, relating to or connection with the Assets or the Business heretofore conducted by the Company or any of third-its affiliates and subsidiaries at any time prior to the Effective Date (the "Assumed Liabilities"). The Assumed Liabilities shall include, but not be limited to: (i) all of the Company's liabilities and obligations under any contracts or agreements to which the Company is party claims)including all obligations for the payment of past, current or future amounts payable thereunder (including, without limitation, interestthe lease of the Company's office facilities in El Monte, penaltiesCalifornia, reasonable attorney any distribution, license, joint venture agreement involving the Company, and accountant fees any other contract or agreement relating to the Company or the Business) ("Contract Liabilities"); (ii) each of the liabilities set forth on Schedule B hereto, as may be amended and updated as provided herein, (iii) any claims by past or present stockholders, debt holders, warrant holders, or option holders of the Company on account of actions or events occurring prior to the Effective Date and/or with respect to the Distribution, and (iv) any and all amounts obligations of the Company with respect to the stock option or incentive plans of the Company and any and all options and shares issued under such plans ("Option Plans"). Within thirty (30) days following the Effective Date, the Company and ASAP shall cause the Auditor to deliver to the Company and ASAP the audited financial statements of the Company and ASAP as of the Effective Date. Upon such delivery, the Company and ASAP shall update and amend the Schedule B attached hereto and provide any supporting schedules reasonably required to identify the Assumed Liabilities in detail. Within thirty (30) days following the Effective Date, ASAP shall have: (i) paid in investigation, defense or settlement of any full each of the foregoing. The liabilities set forth on Schedule B hereto, as amended and modified, or provided for the payment thereof out the Subscription Funds, or obtained the consent to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities such liability by any party hereunder shall not enlarge any rights ASAP and a release of third parties under contracts or arrangements with Buyer or Seller, liability in favor of the Company; and nothing herein shall prevent any party (ii) obtained the consent to the assumption of all Contract Liabilities and a release of liability thereunder in favor of the Company from contesting in good faith with any the third party any of said liabilitiesto whom liability or obligation is owed now or in the future ("Release").

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected listed on the Base Balance Sheet Schedule 1.2(a) hereof which are outstanding at the time of the Closing, Closing and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet hereof in the ordinary course of business and consistent with the terms of this Agreement and the Master Agreement which are outstanding at the time of the Closing, including all obligations that arise after Closing under any contracts included in the Subject Assets; provided, however, that Buyer shall not assume and shall not pay the following liabilities: (ia) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant accountant’s fees, any indemnification liabilities of the Seller that may arise under this Agreement or the Master Agreement and expenses pertaining to the performance by Seller of its obligations hereunder; (iib) Taxes (as defined in Section 2.08 hereof2.15 of the Master Agreement) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iiic) Liabilities of Seller to its dissenting Shareholdersshareholders, if any, under the Massachusetts Pennsylvania Business Corporation Law; (ivd) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and; (ve) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-third party claims), including, without limitation, interest, penalties, reasonable attorney attorneys’ and accountant accountants’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing. , provided, however, that solely to the extent the foregoing are fully covered by insurance transferred to the Buyer under Section 1.1, such liabilities shall be assumed by the Buyer; and (f) Liabilities incurred pursuant to actions taken, or actions not taken, that are inconsistent with the covenants set forth in Section 3.2 of the Master Agreement; and The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, Seller and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer (a) Orkin shall assume on the Closing Date and agree to pay or shall pay, perform and discharge when due all of PRISM's obligations and liabilities arising from and after the Closing under the Customer Contracts (and the related guarantees of PRISM), the Other Contracts, the Leases and the Purchase Orders ("Executory Contractual Liabilities"). In consideration of a reduction in accordance with their respective terms all the Purchase Price for the Assets, Orkin shall also assume the liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining PRISM relating to the performance by Seller Pest Business for accrued but unused vacation, bonus days with pay, banked sick days, and/or personal choice days of its obligations hereunder; (ii) Taxes Transferred Employees (as defined in Section 2.08 hereof5.04) as of Seller the Closing Date and certain specified accounts payable as identified and in the amount contained on the Assumed Payables List (whether relating the "Special Liabilities") (the Special Liabilities collectively, together with the Executory Contractual Liabilities are the "Assumed Liabilities"). Orkin's obligations under this Section 1.04(a) shall not be subject to periods before offset or after the transactions contemplated reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or incurred by Seller any agreement or document delivered in connection with this Agreement and the transactions provided for herein), including herewith or any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined right or unitary tax returns or arising out of any transferee liability;alleged right to indemnification hereunder. (iiib) Except for the Assumed Liabilities of Seller to its dissenting Shareholdersand except as provided in Section 5.04(g) or Section 5.10(a) hereof, if anyit is expressly understood and agreed between the parties hereto that ORKIN SHALL NOT ASSUME AND IS NOT ASSUMING, under the Massachusetts Business Corporation Law; NOR SHALL ORKIN BECOME LIABLE, OBLIGATED OR RESPONSIBLE FOR THE PAYMENT OF ANY DEBTS, LIABILITIES OR OBLIGATIONS OR THE PERFORMANCE OF ANY DUTIES OF PRISM OF ANY KIND OR NATURE WHATSOEVER, KNOWN OR UNKNOWN, WHETHER ARISING BEFORE, ON OR SUBSEQUENT TO THE CLOSING AND WHETHER CONTINGENT OR [***] - CONFIDENTIAL TREATMENT REQUESTED LIQUIDATED IN AMOUNT (ivINCLUDING, WITHOUT LIMITATION, ANY DEBT, LIABILITIES, OBLIGATIONS OR DUTIES ARISING OUT OF ACCOUNTS PAYABLE, TAX LIABILITIES, ENVIRONMENTAL, IMMIGRATION OR PRODUCT LIABILITY MATTERS, EMPLOYEE BENEFITS, CUSTOMER CONTRACTS OR OTHER CONTRACTS, AGREEMENTS OR OTHER LIABILITIES OF PRISM) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesRELATED TO THE ASSETS OR THE OPERATION OF PRISM'S BUSINESS PRIOR TO CLOSING.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale conditions in this Agreement, on the Closing Date, Purchaser will deliver an undertaking in form and purchase of the Subject Assets, Buyer shall substance reasonably satisfactory to Seller and its counsel pursuant to which Purchaser will assume and agree to pay or pay, perform and discharge when due in accordance with their respective terms (i) all obligations and liabilities of Seller shown to the extent reflected or reflected reserved against in Seller's balance sheet as of September 30, 1995, included in the Seller Financial Statements (defined below), (ii) all obligations and liabilities of Seller arising after the Closing Date under any contracts, agreements, instruments and arrangements listed on Schedule 3.19 furnished by Seller to Purchaser pursuant to this Agreement or entered into in the Base Balance Sheet which are outstanding at the time ordinary course of the Closingbusiness, and (iii) all current liabilities and obligations incurred by of Seller since of the nature contained on Seller's September 30, 1995 balance sheet or of the nature disclosed on Schedule 3.7 hereto, arising after the date of the Base Balance Sheet such balance sheet in the ordinary course of business and consistent with the terms not in violation of Section 10.1 of this Agreement which are outstanding at the time of the ClosingPROVIDED, provided, howeverHOWEVER, that Buyer shall Purchaser will not assume and shall not pay any liability of Seller in excess of Four Hundred Thousand Dollars ($400,000) under the following liabilities: (i) Liabilities incurred Promissory Note dated December 18, 1995 made by Seller in connection with this Agreement and favor of Neville in the transactions provided for hereinoriginal principal amount of One Million Two Hundred Thousand Dollars ($1,200,000) (the "Neville Note"). Any of the foregoing notwithstanding, Purchaser will not assume any other obligations or liabilities of Seller, including, without limitation, counsel those arising out of or in connection with the negotiation and accountant feespreparation of this Agreement or the consummation of the transactions provided for in this Agreement (except for the fees of Seller's professional advisors in an amount not to exceed Forty-Five Thousand Dollars ($45,000), and expenses pertaining to the performance by or for any taxes of Seller of its obligations hereunder; (ii) any nature other than VAT Taxes and GST Taxes (each as defined in Section 2.08 hereof3.10) of to the extent reserved for on the Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoingFinancial Statement. The liabilities to be assumed by Buyer under this Agreement Purchaser hereunder are hereinafter sometimes collectively referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded "Assumed Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities."

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of this Agreement and in reliance upon the Subject Assetsrepresentations, warranties and agreements herein set forth, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding agrees, effective at the time of the Closing, to procure that the relevant European Buyer shall assume, perform and discharge the following Liabilities as relevant with respect to the EU Wireless Sales Business and the Transferred Assets (collectively, the "ASSUMED LIABILITIES"): (a) all liabilities and obligations incurred by Seller since the date of the Base European Seller that is the counterparty to such European Buyer ("EUROPEAN SELLER COUNTERPARTY") with respect to accounts payable of the EU Wireless Sales Business (including accounts payable owed to RIL) listed in Schedule 6 of the relevant Local Xxxx of Sale (or, in the case of Racal Italy, Schedule 1 to the Italian Accounts Payable Xxxx of Sale) or arising after May 31, 2003, in each case, to the extent reflected in the Closing Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder"ACCOUNTS PAYABLE"); (iib) Taxes (as defined in Section 2.08 hereof) all obligations of its European Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein)Counterparty under, including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of, the Assumed Contracts under the relevant Local Xxxx of any transferee liabilitySale to the extent accrued on the Closing Balance Sheet or arising after the Closing Date; (iiic) Liabilities all obligations of its European Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller Counterparty with respect to any optionscapital lease and outstanding at the Closing Date relating to any Transferred Asset listed in Schedule 7 of the relevant Local Xxxx of Sale, warrantsother than any Italian Xxxx of Sale, agreements or convertible or other rights arising after May 31, 2003, in each case, to acquire any shares the extent reflected in the Closing Balance Sheet; (d) all obligations of its capital stock European Seller Counterparty with respect to accrued expenses of the EU Wireless Sales Business referred to in Schedule 8 of the relevant Local Xxxx of Sale, other than any classItalian Xxxx of Sale, or arising after May 31, 2003, in each case, to the extent reflected in the Closing Balance Sheet ("ACCRUED EXPENSES"); (e) all obligations of its European Seller Counterparty with respect to product warranties and service contracts relating to the Assumed Contracts, including without limitation, with respect to replacement of, or refund for, damaged, defective or returned goods and claims of product liability existing on the Closing Date (to the extent reflected in the Closing Balance Sheet) or arising after the Closing Date (collectively, the "ASSUMED WARRANTIES"); and (vf) all Liabilities in connection with of the EU Wireless Sales Business or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses the Transferred Assets (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “other than Excluded Liabilities) to the extent resulting from events or conditions occurring, or arising, on or after the Closing Date.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) Subject to and upon the sale terms and purchase conditions of the Subject Assetsthis Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time effective as of the Closing, MGI agrees to assume from Xxxxx and to pay, perform and discharge according to their terms all of the following liabilities and obligations incurred by Seller since of Xxxxx (the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:"ASSUMED LIABILITIES"): (i) Liabilities incurred by Seller in connection with this Agreement and all customer support obligations arising prior to, on or after the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to Closing Date under the performance by Seller of its obligations hereunderThird Party Contracts; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating all other contractual liabilities or obligations unrelated to periods before or customer support obligations accruing from and after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and Closing Date under the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityThird Party Contracts; (iii) Liabilities of Seller all liabilities and obligations with respect to its dissenting ShareholdersNew MGI Employees, if any, under accruing from and after the Massachusetts Business Corporation Law;Closing Date; and (iv) Liabilities all Transfer Taxes which by law are imposed upon MGI. (b) Nothing herein shall be deemed to deprive MGI of Seller any defenses, set-offs or counterclaims which Xxxxx may have had or which MGI shall have with respect to any optionsof the Assumed Liabilities (collectively, warrantsthe "DEFENSES AND CLAIMS"). Effective as of the Closing, agreements or convertible or other rights Xxxxx agrees to acquire any shares of its capital stock assign, transfer and convey to MGI all Defenses and Claims and agrees to cooperate with MGI (at MGI's expense) to maintain, secure, perfect and enforce such Defenses and Claims, including the execution of any class; and (v) Liabilities documents, the giving of any testimony or the taking of any such other action as is reasonably requested by MGI in connection with such Defenses and Claims. (c) MGI does not assume, and Xxxxx does not transfer or relating to all actionsassign, suitsany liabilities or obligations, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims)related to the SoftDVD Product Line, includingand whether presently fixed and determined, without limitationcontingent or otherwise, interestor Transfer Taxes, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of other than the foregoing. The liabilities Assumed Liabilities to be expressly assumed by Buyer under this Agreement are hereinafter sometimes referred MGI pursuant to as the “Liabilities,” Section 2.3(a) hereof. All such liabilities and the liabilities which are obligations not expressly assumed by Buyer under this Agreement are hereinafter sometimes referred MGI ("EXCLUDED LIABILITIES") shall remain liabilities of Xxxxx, which shall be solely liable to as the “Excluded Liabilitiesperform and discharge such liabilities and obligations.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) Buyer hereby assumes, and agrees to perform, and otherwise pay, satisfy and discharge all existing and future liabilities and obligations of Xxxxxxx, as set forth in the sale attached Schedule "A", including Xxxxxxx' proportionate share of those liabilities owed by the Company to NIR or entities associated with NIR (the "NIR Liabilities"). The liabilities set forth in Schedule A and purchase assumed by the Buyer (personally by its representative, Xxxxxx X. Xxxxx, as an additional investment in Xxxxxxx rather than by Xxxxxxx), other than the NIR Liabilities are referred to herein as the "Assumed Liabilities". Seller also agrees to assign any and all claims, causes of action, and affirmative defenses which it ever had, now has, or hereafter may have, whether currently known or unknown relating to the Subject AssetsAssumed Liabilities to Buyer's Representative, Buyer shall assume Xxxxxx X. Xxxxx. (b) The Buyer's Representative, Xxxxxx X. Xxxxx, hereby assumes, and agree agrees to pay perform, and otherwise pay, satisfy and discharge all existing and future liabilities and obligations of Xxxxxxx (whether known or discharge when unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due in accordance with their respective terms or to become due), including (a) all liabilities of the Seller shown for transfer, sales, use, and other non-income taxes arising in connection with the consummation of the transactions contemplated hereby, and (b) all liabilities and obligations of the Seller under the agreements, contracts, leases, licenses, and other arrangements referred to in the definition of Purchased Assets, including but not limited to any claims, debts, expenses, liabilities, and claims or reflected on legal fees whatsoever associated with or incurred as a result of such Assumed Liabilities (collectively the Base Balance Sheet which are outstanding at "Assumed Liability Expenses"), and that Xxxxxxx and Buyer will forever indemnify and hold harmless the time Company and against such Assumed Liabilities and any Assumed Liability Expenses following the Closing. (c) Effective as of the Closing, the Company hereby agrees to assume, and agree to perform, and otherwise pay, satisfy and discharge all existing and future liabilities and obligations incurred by Seller since relating to the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the ClosingNIR Liabilities, providedattached hereto as Schedule "B" (whether known or unknown, howeverwhether asserted or unasserted, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for hereinwhether absolute or contingent, includingwhether accrued or unaccrued, without limitation, counsel and accountant feeswhether liquidated or unliquidated, and expenses pertaining whether due or to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinbecome due), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect but not limited to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedingsdebts, demands, assessments and judgments, costs, lossesexpenses, liabilities, damages, deficiencies and expenses claims or legal fees whatsoever associated with or incurred as a result of such NIR Liabilities (whether or not arising out of third-party claimscollectively the "NIR Liability Expenses"), including, without limitation, interest, penalties, reasonable attorney and accountant fees that the Company will forever indemnify and all amounts paid in investigation, defense or settlement of hold harmless Xxxxxxx and/or the Buyers against such NIR Liabilities and any of NIR Liability Expenses following the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesClosing.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale terms and purchase conditions hereof, Purchaser shall, effective at the time of the Subject AssetsClosing, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities perform the obligations of Seller shown or reflected on set forth in clauses (a) through (g) below of this Article 2, relating exclusively to the Base Balance Sheet Business and which are outstanding at to be performed from and after the time of Closing Date (the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:"Assumed Liabilities"): (ia) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by obligations of Seller of its or the Business under the Contracts, provided that such performance obligations hereunder; (ii) Taxes shall specifically exclude the Performance Obligations to Cure a Breach (as defined in Section 2.08 2.2(iii)); (b) all obligations of Seller to conduct the Business from and after the Closing Date in accordance with the compliance orders described in SCHEDULE 2.1(b); (c) all obligations of Seller relating to the Hired Employees (as hereinafter defined) for the Accrued Employee Credit (as hereinafter defined), in addition to all performance obligations of Seller to withhold wages from any Hired Employee in satisfaction of any child support order, garnishment obligation or other court order, if any; (d) subject to Section 6.6 hereof, with respect to the Employees of the Business only, all liabilities and obligations of Seller under the Collective Bargaining Agreements (and, in connection therewith, Purchaser hereby agrees to recognize the labor organizations set forth in SCHEDULE 1.1(i)(vi) as the exclusive bargaining representatives of the Employees of the Business covered by the Collective Bargaining Agreements), except that Purchaser shall not be required to assume any obligations under the employee benefit plans set forth on SCHEDULE 2.1(d), which plans by their terms Purchaser cannot assume; (e) all liabilities for contributions with respect to the Hired Employees for periods after the Closing Date, pursuant to the Collective Bargaining Agreements described herein and payable to the "multiemployer plans" (as defined under Section 4001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) described on SCHEDULE 2.1 (e) to which the Seller makes contributions on behalf of the Employees of the Business; PROVIDED, HOWEVER, that such liabilities do not include any currently existing "withdrawal liability" (as described in Section 4201 of ERISA) of Seller that is owing to any of such plans as a result of events occurring prior to the Closing Date; (whether relating f) from and after July 14, 2001, but subject to periods before Section 6.4 of this Agreement, all liabilities and obligations of the Business for environmental liabilities related to activities or after conditions that precede the transactions contemplated in this Agreement Closing Date and which are unknown as of July 14, 2001, to the extent that such activities or incurred by conditions occur or exist within the legal property boundaries of an Acquired Facility; PROVIDED, HOWEVER, that Seller in connection with this Agreement shall at all times remain liable for any environmental liability that both: (1) arises out of Seller's ownership of the Business prior to the Closing Date; and (2) relates to off-site remediation obligations, liability under the transactions provided for hereinComprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund"), including any liability for Taxes arising out of 42 U.S.C. 9601 ET SEQ., or similar liability, except to the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee extent that Purchaser's activities contributed to such environmental liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon At the sale and purchase of the Subject AssetsClosing, Buyer Purchaser shall assume and agree to pay or become liable for, and shall pay, perform and discharge as and when due all of the debts, liabilities, claims, demands, expenses, commitments and obligations (whether accrued or not, known or unknown, disclosed or undisclosed, fixed or contingent, asserted or unasserted, liquidated or unliquidated) (collectively, "Liabilities") of Seller and the Designated Subsidiaries which are set forth below in this Section 2.3 (any and all of such items, but other than the Excluded Liabilities, the "Assumed Liabilities"): (a) all Liabilities arising after the Closing Date under the Interpool Exclusive Leases and all Liabilities under the leases relating to the Transamerica Containers and Transamerica Trailers (collectively the "Transamerica Leases") arising prior to the Transamerica Closing Date or following the Closing Date (including, without limitation, the obligation to refund security deposits to customers in accordance with their respective the terms thereof); (b) all liabilities of Seller shown or reflected on Liabilities after the Base Balance Sheet which are outstanding at Closing Date under the time Interpool Non- Exclusive Leases relating to the Intermodal Assets (including, without limitation, the obligation to refund security deposits to customers in accordance with the terms thereof); (c) all Liabilities under the Scheduled Lease-In Transactions (including, without limitation, the Purchaser's assumption and, if obtained, novation of the Closing, and Indebtedness) acquired pursuant to Section 2.1(f); (d) all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Liabilities arising in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining prior to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller Closing with respect to any optionscondition of or return or warranty relating to the Intermodal Assets; (e) all Liabilities for death, warrantspersonal injury, agreements or convertible other injury to persons, property damage, or other rights loss or damage, to acquire the extent relating to, resulting from, caused by or arising out of, the Acquired Assets, including the use thereof, whether such Liabilities are based on tort, negligence, strict liability, failure to warn, design or manufacturing defect, conspiracy, breach of express or implied warranties of merchantability or fitness for any shares purpose or use, employment, workers' compensation, occupational health and safety or occupational injury laws but in any such case only to the extent such Liabilities relate to events occurring after the Closing and excluding any Liabilities under Environmental Laws (which are covered under clause (g) below); (f) the obligation to refund security deposits to customers in accordance with the Intermodal Exclusive Leases and the Intermodal Non-Exclusive Leases, to the extent reflected on the Closing Date Schedule of its capital stock of any classSecurity Deposits; and (vg) Liabilities in connection with except to the extent of Hazardous Materials or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether violations of Environmental Laws present or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any existing as of the foregoing. The liabilities to be assumed Closing Date, all Liabilities under Environmental Laws relating to, resulting from, caused by Buyer under this Agreement are hereinafter sometimes referred to as or arising from the “Liabilities,” use of the Acquired Assets from and after the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesClosing.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase Indemnification. ------------------------------------------ (a) Effective as of the Subject AssetsClosing, Buyer shall assume assumes, takes over and agree agrees to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: to perform (i) Liabilities incurred all liabilities, duties and obligations of Seller arising at any time on or after the Effective Time with respect to the Interests under or by virtue of any Contract, (ii) all liabilities, duties and obligations arising at any time before, on or after the Effective Time on account of or with respect to the physical condition of the Interests or the application to such physical condition of any federal, state or local legislative, administrative or judicial laws, ordinances, rules, regulations, decrees, orders or rulings irrespective whether or not any governing, regulatory or judicial bodies recognize the transfer of the Interests from Seller to Buyer (including without limitation such of the foregoing as shall relate to protection of the environment or to plugging, replugging or abandoning of active, inactive or abandoned oil and gas xxxxx on the Interests), and (iii) all other liabilities, duties and obligations arising at any time after Closing with respect to the Interests. All liabilities, duties and obligations described in connection with this Paragraph 19(a) are sometimes referred to in this Agreement as the "Assumed Liabilities". Seller and Buyer agree that liabilities, duties and obligations of the transactions provided for herein, including, without limitation, counsel type specified in Paragraph 19 (a)(i) arising on or after the Effective Time but prior to Closing or Closing Failure will be paid and/or performed as set forth in Paragraph 21 and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderParagraph 26; (iib) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated As used in this Agreement or incurred by Seller in connection with this Agreement Agreement, "Claims" shall include any and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, lossescauses of action, liabilities, damages, deficiencies penalties and expenses (whether judgments of any kind or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees character and all amounts paid costs and fees in investigationconnection therewith, defense including attorney's fees, (i) on account of personal injury, death, or settlement damage to property or the environment or otherwise or (ii) for money or for equitable or any other form of relief. Effective as of Closing, Buyer shall defend, indemnify and hold harmless Seller from and against, and Buyer shall as of Closing release and discharge Seller from, any and all Claims arising directly or indirectly from, or incident to, the failure of Buyer to assume, take over or pay or perform any or all of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Assumed Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.; and

Assumption of Liabilities. Upon At the sale and purchase of the Subject AssetsClosing, Buyer shall assume assume, and agree to pay or thereafter pay, perform and discharge when due in accordance with their respective terms due, all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and following liabilities (the "Assumed Liabilities"): (a) all liabilities and obligations incurred by Seller since of Sellers arising after the date of Closing relating to the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for hereinAcquired Contracts, including, without limitation, counsel all cure costs required to be paid pursuant to section 365 of the Bankruptcy Code in connection with the assumption and accountant feesassignment of the Acquired Contracts (such cure costs are, and expenses pertaining to collectively, the performance by Seller of its obligations hereunder"Cure Costs"); (iib) Taxes (as defined in Section 2.08 hereof) of Seller (whether all liabilities and obligations arising after the Closing relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityAcquired Assets; (iiic) Liabilities except as set forth in Section 1.4(a), all liabilities and obligations of any Seller relating to its dissenting Shareholders, if any, the Acquired Assets and arising under the Massachusetts Business Corporation any Environmental Law; (ivd) Liabilities the accounts payable of Sellers that exist at the Closing Date of the type set forth on the Reference Balance Sheet (the "Accounts Payable"); (e) all liabilities and obligations of Sellers as of the Closing Date for real and personal property Taxes that are set forth on Schedule 1.3(e); provided, however, that in no event shall the liabilities assumed under this Section 1.3(e) exceed $42,000,000; (f) all liabilities and obligations of Sellers as of the Closing Date for vacation pay for any hourly employees of Seller in excess of $10,000,000; provided, however, that in no event shall the liabilities assumed under this Section 1.3(f) exceed $20,000,000; (g) fifty percent of all liabilities and obligations of Sellers as of the Closing Date for vacation pay for any salaried employees of Sellers; provided, however, that in no event shall the liabilities assumed under this Section 1.3(g) exceed $6,500,000 (the liabilities described in this Section 1.3(g), together with respect the liabilities described in Section 1.3(e) and Section 1.3(f), are hereinafter collectively referred to as the "Specified Liabilities"); (h) the operating liabilities of the Railroad Subsidiaries, Columbus Coatings Company and Columbus Processing Company, LLC (excluding any optionscollective bargaining agreement or employee benefit plan not listed on Schedule 1.1(d) or Schedule 1.1(r)); (i) all liabilities and obligations of the Railroad Subsidiaries arising out of, warrantsor relating to, agreements public or convertible private street, bridge, underpass or other rights to acquire any shares of its capital stock crossings imposed by the regulations or orders of any classregulatory or licensing agency, or by agencies or governmental bodies responsible for preserving the public health or safety; and (vj) Liabilities in connection with all liabilities and obligations arising from or relating to the Acquired Benefit Plans; and (k) all actions, suits, claims, proceedings, demands, assessments liabilities and judgments, costs, losses, liabilities, damages, deficiencies and expenses obligations for damages to Persons or property (whether or not arising out of third-party claims), including, without limitation, interestliabilities and obligations to repair or replace, penalties, reasonable attorney and accountant fees and all amounts paid or to refund the sales price (or any other related expenses)) relating to alleged defects in investigation, defense (i) products sold by Sellers after the Petition Date or settlement of any of arising under warranties issued by Sellers after the foregoing. The liabilities to be assumed Petition Date or (ii) buildings or structures that have been manufactured by Buyer under this Agreement are hereinafter sometimes referred to as Sellers after the “Liabilities,” and Petition Date or that incorporate products sold or manufactured by Sellers after the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesPetition Date.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon The Purchaser hereby agrees, subject to Section 1.6 hereof and the sale other terms and purchase conditions of this Agreement, that on and after the Subject Assets, Buyer Closing Date it shall assume and agree to pay or fully and timely perform, discharge when due and pay, in accordance with their respective terms terms, all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in Seller relating to (collectively, the ordinary course “Assumed Liabilities”): (a) the deposit accounts shown on the books and records of the Branches as of the close of business and consistent with on the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: Closing Date (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel all checking, savings, certificate of deposit, individual retirement, Xxxxx, money market, time deposit, repurchase agreements and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (iisweep accounts) Taxes (as defined in Section 2.08 hereof) of Seller (whether together with all accrued interest relating to periods before such deposit accounts through the close of business on the Closing Date, all of such deposit accounts being listed on Exhibit 1.5(a) hereto (which Exhibit shall be updated to reflect new deposits made and deposits withdrawn or after paid between the transactions contemplated in this Agreement or incurred by Seller in connection with date of this Agreement and the transactions provided Closing Date) and shall be delivered to the Purchaser at the Closing (collectively, the “Deposit Liabilities”); provided, that the Purchaser will not assume any Pre-Closing Event Liability related to or in respect of such Deposit Liabilities; (b) the performance of contractual obligations arising, and relating to the period, after the Closing Date under the Loans; (c) the Branch Leases, other than any Pre-Closing Event Liability related to or in respect of such Branch Leases; (d) the Assumed Contracts, other than any Pre-Closing Event Liability related to or in respect of such leases and contracts; (e) all safe deposit boxes and all rental agreements and contracts for herein)the safe deposit boxes located at the Branches as of the Closing Date; (f) pursuant to Section 2.7, including liabilities of Purchaser to any liability for Taxes Transferred Employees; (g) all obligations of the Seller relating to the Branches in respect of Fiduciary Relationships related to Deposit Liability in respect of IRAs included in the Assumed Liabilities pursuant to Section 2.31; and (h) all liabilities or obligations which are expressly identified elsewhere in this Agreement as being assumed, performed, discharged or paid by the Purchaser. The liabilities and obligations described in this Section 1.5 that the Purchaser hereby agrees to assume and fully and timely perform, discharge and pay are referred to collectively in this Agreement as the “Assumed Liabilities”. Notwithstanding anything to the contrary contained in this Agreement, the Purchaser shall not assume or be bound by any duties, responsibilities, obligations or liabilities of the Seller relating to the Seller or arising out of the inclusion of Seller in any group filing consolidatedAssets, combined the Excluded Assets, or unitary tax returns or arising out the Branches, of any transferee liability; (iii) Liabilities of kind or nature and whether known, unknown, contingent or otherwise, on or before the Closing Date, other than the Assumed Liabilities. After the Closing Date, the Seller to its dissenting Shareholdersshall have no duties, if anyresponsibilities, liabilities or obligations under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller or with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Assumed Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase (a) As of the Subject AssetsClosing Date, Buyer shall assume and agree pay, perform and discharge in a timely manner according to their terms only the following Liabilities of each Domestic Seller Company (the "Assumed Liabilities"): (i) Liabilities arising under the Assigned Contracts from and after the Closing Date; (ii) Liabilities set forth on the Estimated Statement, as revised by the Closing Date Statement, including, without limitation, trade account payables, payroll, accrued vacation pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the other paid time of the Closingoff obligations, 401(k) matching contributions and all liabilities other accruals and obligations incurred by Seller since the date of the Base Balance Sheet other current Liabilities arising in the ordinary course of business that remain unpaid at and consistent are not delinquent as of the Closing Date; (iii) Liabilities related to any warranty claims by such Domestic Seller Company's customers with respect to work performed or Software licensed by such Domestic Seller Company prior to the terms Closing Date pursuant to any of the Assigned Contracts ("Domestic Seller Companies Warranty Liabilities"), subject to the Buyer's rights under ARTICLE VIII hereof; (iv) Liabilities related to Continuing Domestic Employees set forth in Section 5.06; (v) Liabilities for Periodic Taxes made payable by Buyer pursuant to Section 5.06 for Taxes with respect to the Acquired Assets for any Post-Closing Period and, with respect to Straddle Periods, that are allocable pursuant to Section 5.06 to the portion of such period beginning on the Closing Date; (vi) Liabilities under any Plant Closing Law that arise out of actions by Buyer after the Closing Date or a breach of this Agreement which are outstanding at by Buyer; and (vii) Other Liabilities, if any, listed on Schedule 2.03(a). (b) Notwithstanding anything contained in this Agreement to the time of the Closingcontrary, providedexcept as expressly set forth in Section 2.03(a) above, however, that Buyer shall not assume or become liable or obligated in any way, and each Domestic Seller Company shall not pay retain and remain solely liable for and obligated to pay, perform and discharge all Liabilities of such Domestic Seller Company, including all of the following liabilities:(collectively, the "Excluded Liabilities"): (i) Liabilities incurred by under any Excluded Contracts; (ii) Except Domestic Seller Company Warranty Liabilities, Liabilities arising under any Assigned Contracts that relate to the time period prior to the Closing Date or arise out of events occurring prior to the Closing Date; (iii) Any forfeiture, claim or pending litigation or proceeding relating to the Business prior to the Closing Date; (iv) Except as set forth in connection with this Agreement and the transactions provided for hereinSection 5.06, any Liabilities under any Employee Benefit Plan, including, without limitation, counsel and accountant feesany obligation of such Domestic Seller Company to any persons under so-called phantom stock or interest plans, and expenses pertaining to including, but not limited to, the performance by Seller of its obligations hereunderZeon Solutions Incorporated 2011 Phantom Stock Plan; (iiv) Any Liabilities for severance payments or other payments incurred as a result of the termination of the employment of any employee or independent contractor of such Domestic Seller Company who is not a Continuing Domestic Employee or Continuing Domestic Independent Contractor; (vi) Any Liabilities for Taxes (as defined in Section 2.08 hereofA) of such Domestic Seller Company for all taxable periods or portions thereof ending on or before the day immediately prior to the Closing Date, other than such Taxes as are made payable by Buyer pursuant to Section 5.08, (whether relating B) which may be applicable to periods the Business or the Acquired Assets for any taxable period or portion thereof ending on or before or the day immediately prior to the Closing Date and for any taxable period beginning before and ending after the Closing Date to the extent allocable pursuant to Section 5.08 to the portion of such taxable period ending on the day immediately prior to the Closing Date, (C) of such Domestic Seller Company for Taxes arising in connection with the consummation of the transactions contemplated in this Agreement hereby, other than such Taxes as are made payable by Buyer pursuant to Section 5.08 or incurred by (D) for which such Domestic Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller Company is responsible pursuant to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classSection 5.08; and (vvii) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out Any Liability of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement such Domestic Seller Company incurred as a result of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitieslegal proceedings set forth on Schedule 3.11.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of the Subject Assetsthis Agreement, Buyer shall assume on the Closing Date (or, in the case of Section 2.5(d), the Toledo Plant Closing Date, as applicable) and agree to pay or shall pay, perform and discharge when due the following obligations, liabilities and commitments of each Seller (collectively, the "Assumed Liabilities"): (a) all obligations, liabilities and commitments of each Seller in accordance with their respective terms respect of any and all liabilities of Seller shown Products shipped by Buyer or reflected on the Base Balance Sheet which are outstanding at the time in respect of the operation of the Business at any time after the Closing Date except where such Products constituted finished products as of the Closing Date and such liabilities, obligations or commitments of Sellers constituted product liabilities or recall liabilities, unless (and to the extent that) the liabilities, obligations or commitments were caused by Buyer's negligence in the storage or transportation of such Products after the Closing or Buyer's failure after the Closing to employ quality control standards of at least the standards employed by Sellers prior to the Closing; (b) except as otherwise expressly provided in Section 7.12, and all liabilities and obligations incurred for manufacturer's coupons relating to Products, which coupons are received by the clearinghouse for reimbursement for all periods beginning sixty (60) days after the Closing Date, regardless of when such coupons were issued; (c) all obligations, liabilities and commitments of each Seller since and its Affiliates to the extent accruing, in accordance with the terms thereof, after the Closing Date, under Purchase Orders; (d) all liabilities, obligations and commitments of each Seller and its Affiliates to the extent accruing, in accordance with the terms thereof, after the Closing Date, under the Assigned Contracts; and all liabilities, obligations and commitments of each Seller and its Affiliates to the extent accruing, in accordance with the terms thereof, after the Toledo Plant Closing Date, under the Toledo Plant Assigned Contracts; and all liabilities, obligations and commitments of each Seller and its Affiliates under the Dividable Contracts with respect to any portions thereof transferred to Buyer, to the extent accruing in accordance with the terms thereof, after the date of transfer to Buyer, under such portions, and all liabilities, obligations and commitments of each Seller and its Affiliates under the Base Balance Sheet Toledo Plant Dividable Contracts with respect to any portions thereof transferred to Buyer, to the extent accruing in accordance with the terms thereof, after the date of transfer to Buyer, under such portions; (e) all liabilities and obligations for trade promotions arising from (i) trade promotion activities or events primarily related to the Business that are committed to after the Closing Date and occur at any time following the Closing Date or (ii) trade promotion activities or events primarily related to the Business that occur following the Closing Date and that were committed to before the Closing Date, except to the extent any such single activity or promotion was not disclosed, on SCHEDULE 2.5(e) or otherwise, to Buyer by Sellers and the liability and obligation per customer buying group related to such activity or promotion exceeds $100,000 unless such activity or promotion was committed to by Sellers in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderpast practice; (iif) Taxes (as defined in Section 2.08 hereof) of Seller (whether all refund and replacement obligations relating to periods before or Products shipped prior to Closing and returned after the transactions contemplated date that is thirty (30) days after the Closing Date and for retail unsaleables in this Agreement or incurred by Seller in connection with this Agreement and all periods beginning thirty (30) days after the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityClosing Date; (iiig) Liabilities of Seller to its dissenting Shareholdersall liabilities and obligations for customer deductions (which shall not include liabilities and obligations for coupons, if anytrade promotions or refund and replacement obligations or retail unsaleables, under the Massachusetts Business Corporation Law; which are addressed by paragraphs (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claimsb), including, without limitation, interest, penalties, reasonable attorney (e) and accountant fees and all amounts paid in investigation, defense or settlement (f) of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.this

Assumption of Liabilities. Upon (a) Subject to Section 2.3(b), at the sale and purchase of the Subject AssetsClosing, Buyer shall assume assume, and shall agree to pay or and discharge as and when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay only the following liabilities:liabilities (collectively, the “Assumed Liabilities”): (i) Those of Seller’s trade accounts payable and other operational accrued expenses including, without limitation, customer deposits, unearned revenue and payment obligations under credit cards, which have arisen in the Ordinary Course of Business and which constitute current liabilities and are included as such on the Final Balance Sheet (the “Other Accrued Expenses”); and (ii) All Liabilities of Seller under the Material Contracts of Seller (other than those expressly listed on Schedule 3.15(a) hereof as “Excluded Contracts”) arising after the Closing Date (the “Assumed Contracts”). (b) Notwithstanding anything to the contrary herein, Buyer shall not be deemed to assume or to be otherwise liable, and Seller will be responsible for, any Liabilities of Seller other than the Assumed Liabilities (the “Excluded Liabilities”). The Excluded Liabilities include, without limitation: (i) all amounts outstanding under any and all indebtedness for borrowed money, including lines of credit, letters of credit, notes payable and loans payable and any Related Party Loan Amounts; (ii) all environmental Liabilities that arise out of or result from events occurring or conditions existing on or prior to the Closing Date; (iii) except for those payment obligations expressly referenced in Section 2.3(a)(i) above all Tax Liabilities of Seller, including any such Liabilities of Seller related to consummation of the Contemplated Transactions; (iv) any Liabilities arising out of Seller’s violation or failure to comply with any Legal Requirement or any Order; (v) except for those payment obligations expressly referenced in Section 2.3(a)(i) above, any Liability arising under any Seller Benefit Plans; (vi) except for those payment obligations expressly referenced in Section 2.3(a)(i) above, any Liability arising out of or relating to payroll, workers’ compensation, workers’ compensation premiums, or unemployment benefits arising prior to the Closing Date; (vii) except for those payment obligations expressly referenced in Section 2.3(a)(i) above, any Liability attributable to employment with Seller, work by independent contractors, or work for Seller through temporary or seasonal labor; (ix) any fees, costs and expenses incurred by Seller in connection with this Agreement and the transactions provided for hereinContemplated Transactions; (x) any Liabilities of the Seller to any of Seller’s Members, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; equityholders or Affiliates; (iixi) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes Liabilities arising out of the inclusion Seller’s Breach under any Contracts of Seller or Governmental Authorizations prior to the Closing Date; (xii) any Liability associated with indemnity rights or other Claims under or related to the February 7, 2003 Asset Purchase Agreement entered into between United Rental, Inc. and Seller; and (xiii) any matter or condition disclosed in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; Section 3.9(j) (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,IRS Independent Contractor Matter” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities2004 Withholding Discrepancy”), Section 3.15(a)(xiii), Section 3.19, Section 3.21(c) and Section 3.23.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale terms and purchase of conditions set forth in this Agreement, at the Subject AssetsClosing, the Company shall assign to Buyer, and Buyer shall assume and agree to pay or pay, perform, and discharge when due the following Liabilities of either Seller arising out of or relating to the ER Business or the Assets, other than the Excluded Liabilities (collectively, the “Assumed Liabilities”): 2.4.1 all trade accounts payable, accrued expenses, and other current Liabilities of the Company to third Persons in accordance connection with their respective terms the ER Business that remain unpaid as of the Closing Date, exclusive of any Charlotte Liabilities, but specifically including, and only to the extent included in the Closing Working Capital, all liabilities accrued and unpaid compensation of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time all Covered Employees as of Closing (including hourly wages, salary, overtime, bonuses, 401k, profit-sharing, commissions, fringes, PTO, vacation, holiday, sick days, statutory deductions, payroll Taxes, severance, retention, and other costs earned but not paid and/or used as of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder); 2.4.2 all employment and employee-benefit related Liabilities, obligations, claims or losses that relate to any Covered Employee (iiand/or his or her dependents or beneficiaries) Taxes (and that arise as defined in Section 2.08 hereof) a result of Seller (whether an event or events that occur after the Closing Date; 2.4.3 all Liabilities relating to periods costs incurred to notify owners and remedy non-compliances with federal motor vehicle safety standards or safety-related defects that exist in any Covered Product; 2.4.4 all Liabilities, whether arising under a theory of negligence, strict liability, bailment, and/or otherwise, relating to any injury to a Person or damage to property, whether occurring before or after Closing by reason of (a) the transactions contemplated improper performance or malfunctioning of a Covered Product; (b) the improper design or manufacture of a Covered Product; (c) improper warnings to any users of any Covered Product (whether in this Agreement written instructional materials, located on the Covered Product, in marketing literature, or incurred by Seller in connection with this Agreement and the transactions provided for hereinotherwise), including any liability for Taxes arising out ; (d) improper or deficient training of users of the inclusion of Seller in any group filing consolidated, combined Covered Products; or unitary tax returns or arising out (e) other defects of any transferee liabilityCovered Products; (iii) 2.4.5 all Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to the Assigned Contracts, including all unfulfilled customer commitments, quotations, purchase orders, customer orders, and work orders outstanding, pending, or in process as of Closing, but only to the extent that such Liabilities do not relate to any optionsbreach, warrantsdefault or violation by a Seller or any Subsidiary disclosed on Schedule 3.20; 2.4.6 all Liabilities relating to claims made, agreements whether before or convertible after Closing, by any Person that any Covered Product breached any warranty provided by either Seller or other rights any of their respective current or former Affiliates to acquire any shares of its capital stock of any classsuch Person; 2.4.7 all Liabilities set forth in Schedule 2.4.7; and (v) 2.4.8 all other Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not primarily arising out of third-party claims)of, includingor primarily relating to, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any the operation of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as ER Business or the “Liabilities,” and ownership of the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as Assets prior to, on, or after the “Excluded LiabilitiesClosing Date.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. (a) Upon the sale terms and purchase of subject to the Subject Assetsconditions contained herein, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, Acquiror agrees to assume (i) all Liabilities accruing, arising out of, or relating to periods, events or occurrences happening after the Closing Date under (a) the Contracts and all liabilities Leases identified on Schedule 4.8 as "Assumed Contracts" or "Assumed Leases"; (b) any Contract or Lease not required to be set forth on Schedule 4.8 which (1) is commercially reasonable as to its terms binding Seller, (2) is reflected in the Books and obligations incurred by Seller since the date Records, (3) was entered into as a result of the Base Balance Sheet an arms' length negotiation in the ordinary course of business and consistent (4) would not, together with other such Contracts described in clause (b), create a Material Adverse Effect; and (c) under any other Contracts or Leases that are not Assumed Contracts pursuant to the terms foregoing clauses (a) or (b) which Acquiror elects to accept and assume in its sole discretion (the "Additional Contracts"), excluding in each case any Liability for any Default under any Contract or Lease occurring on or prior to the Closing Date, and excluding, in each case, any intercompany Contracts of this Agreement which are outstanding at Seller or the time of Business, (ii) all Current Liabilities, and (iii) liability for real property, personal property and similar ad valorem taxes specifically apportioned to Acquiror pursuant to Section 10.7 hereof (collectively, the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:"Assumed Liabilities"). (ib) Liabilities incurred If Seller discovers an Additional Contract, it shall promptly give Acquiror written notice of such Additional Contract and a copy of such Additional Contract, and Acquiror shall have the option to elect to assume such Additional Contract in its sole discretion. If Acquiror fails to notify Seller of its intention to assume such Additional Contract within thirty (30) days after Acquiror's receipt of written notice from Seller, Seller may assume that Acquiror does not intend to assume such Additional Contract. If Acquiror discovers an Additional Contract, it may assume such Additional Contract in its sole discretion by giving Seller in connection with written notice of its intention to assume such Additional Contract. Any Additional Contracts which Acquiror elects to assume pursuant to this Section 2.2(b) shall be deemed Assumed Contracts for purposes of this Agreement and the transactions provided for herein, including, without limitation, counsel Assignment and accountant fees, and expenses pertaining to the performance by Seller Assumption of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesContract Rights.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale and purchase of the Subject Assetsconditions described in Article II, at Closing, Buyer shall shall, pursuant to an Assumption Agreement substantially in the form of Exhibit B (the “UES Assumption Agreement”), assume and agree to pay or pay, perform, satisfy and discharge when due in accordance with their respective terms all due, to the extent not theretofore paid, performed, satisfied and discharged, the following known and identifiable liabilities of Seller shown or reflected UES existing on the Base Closing Date, except the UES Retained Liabilities (collectively, the “UES Assumed Liabilities”): (i) all of UES’s short-term liabilities reflected in the Interim Balance Sheet which are outstanding at in the time amounts shown thereon; (ii) all of UES’ short-term liabilities incurred after the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Interim Balance Sheet Date in the ordinary course of business in accordance with past practice that are required to be reflected in the Closing Balance Sheet in accordance with GAAP, in the amounts shown thereon, including all short-term liabilities included in Net Asset Value and consistent with the terms all orders from UES’s customers (other than any Liability in respect of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining any such order arising from any breach or nonperformance thereof prior to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityClosing Date; (iii) Liabilities all of Seller UES’s liabilities set forth in the terms of the Contracts, offers and solicitations that are identified in Section 1.2(a)(viii) (other than any Liability under any such Contract, offer or solicitation arising from any breach or nonperformance thereof prior to its dissenting Shareholders, if any, under the Massachusetts Business Corporation LawClosing Date); (iv) Liabilities all of Seller with respect UES’s liabilities under Governmental Authorizations and all pending applications for issuance or renewal thereof that (A) are transferable to Buyer hereunder and (B) are either (1) listed on Schedule 4.14 or 4.22 or (2) are obtained or submitted by UES after the date hereof and prior to the Closing Date (other than any optionsLiability under any such Governmental Authorization or application arising from any breach or nonperformance thereof prior to the Closing Date); (v) all liabilities of UES and its Affiliates for all transfer, warrantsdocumentary, agreements or convertible or other rights sales, use and motor vehicle taxes that result from the sale of the UES Assets pursuant to acquire any shares of its capital stock of any classthis Agreement; and (vvi) Liabilities in connection with or liabilities relating to all actionsthe HIA Claim but only to the extent such liabilities are less than offsetting amounts received with respect to such claim (i.e., suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claimsonly to the extent Buyer’s participation in the HIA Claim results in a net cash recovery for Buyer), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale and purchase of conditions described herein, at the Subject AssetsClosing, the Buyer shall assume and agree to perform, pay or discharge discharge, when due due, to the extent not theretofore performed, paid or discharged, the following obligations of NSC existing on the Closing Date and only such obligations (collectively, the "Assumed Liabilities"): (a) All of NSC's trade accounts payable and accrued liabilities, in each case that are included on Final Purchased Balance Sheet required to be reflected therein in accordance with their respective terms all liabilities US GAAP in the amounts shown thereon, to the extent that such obligations are not different in nature or materially different in amount from those incurred in the ordinary course in accordance with past practice; (b) All of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet NSC's orders to NSC's customers in the ordinary course of business and consistent with outstanding as of the Closing Date reflected on NSC's books (other than any liability arising out of or relating to a breach or nonperformance thereof by NSC prior to the Closing Date); (c) All of NSC's checks outstanding on the Closing Date; (d) All of NSC's liabilities expressly set forth in the terms of this Agreement which are outstanding at the Contracts assumed by Buyer (other than any liability under any such Contract, offer or solicitation arising out of or relating to a breach or nonperformance thereof by NSC prior to the Closing Date); (e) Unpaid bonuses and vacation time of to the Closingextent accrued and included on the Final Purchased Balance Sheet; (f) NSC's liabilities made in the ordinary course for product warranty arising from express warranties for products shipped or distributed by, provided, however, that Buyer or any services provided by NSC; in any event Buyer's financial liability for such express warranty claims shall not assume exceed $5,000 per claim and shall not pay the following liabilities: (i) Liabilities incurred include incidental and consequential damages, although Buyer agrees to perform any valid warranty work in accordance with Buyer's usual practices even if in excess of $5,000 per claim, subject to reimbursement by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining NSC to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out extent of the inclusion amount in excess of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class$5,000 per claim; and (vg) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees Any and all amounts paid Liabilities included in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as Final Purchased Balance Sheet in the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesamount shown thereon.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) At the sale Closing, the Buyer shall execute and purchase deliver a General Instrument of Assumption of Liabilities (the Subject Assets"General Instrument of Assumption") -------------------------------- substantially in the form attached as Exhibit A hereto, pursuant to which the --------- Buyer shall assume and agree to perform, pay or and discharge when due in accordance with their respective the terms all liabilities of Seller shown or reflected on thereof the Base Balance Sheet which are outstanding at the time liabilities, obligations and commitments of the ClosingSeller set forth on Schedule 1.4(a) hereto (the "Assumed Liabilities"). --------------- ------------------- (b) Except with respect to the Assumed Liabilities, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay in any way be responsible for any of the debts, liabilities or obligations of the Seller. Without limiting the generality of the foregoing, the Buyer shall have no liability for the following liabilities:unless and to the extent that such items are listed on Schedule 1.4(a), and the items which are --------------- described below and which are not listed on Schedule 1.4(a) shall be excluded --------------- from the definition of "Assumed Liabilities": ------------------- (i) Liabilities incurred by principal, interest, fees, expenses and other obligations of the Seller in connection respect of borrowed money, capital leases and installment purchases or any agreement with this Agreement and respect thereto, including without limitation any principal, interest, or other obligations due to XX Xxxxxx Xxxxx (formerly the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderChase Manhattan Bank); (ii) obligations of the Seller relating to Taxes (except as defined expressly provided in Section 2.08 hereof8.3 of this Agreement). For purposes of this ----------- Agreement, "Taxes" shall mean all federal, state, local and foreign income, property, sales, use, franchise, employment, withholding, excise and other taxes, tariffs and governmental charges of any nature whatsoever, together with any interest, penalties or additions with respect thereto, including without limitation (A) of Seller (whether relating to periods before or after Taxes owed by the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein)contemplated hereby, including (B) Taxes owed to or assessed by, or any liability for Taxes arising out other claims made by, the BATF or any related party as a result of actions or operations of the inclusion of Seller in any group filing consolidatedprior to the Closing Date, combined and (C) Taxes owed or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller obligations incurred with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any tax audits of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.including without limitation those audits listed on Schedule 2.12 hereto; -------------

Assumption of Liabilities. Upon Subject to the sale terms and purchase conditions of this Agreement, at the Subject AssetsClosing, Buyer the Purchaser shall assume and agree to pay pay, discharge or discharge perform when due the following liabilities and obligations of the Seller (collectively, the "Assumed Liabilities"): (a) all long term debt of the Seller to be set forth on the Closing Date Balance Sheet in accordance with their respective terms Section 8.1 hereof, other than such debt owed to Falken Tire Corporation ("Falken") in excess of Three Hundred Thousand Dollars ($300,000) and notes payable to officers and affiliates of the Seller; (b) all liabilities regular accounts payable of the Seller shown or reflected to be set forth on the Base Closing Date Balance Sheet which are outstanding at the time in accordance with Section 8.1 hereof, including any indebtedness to Falken up to Three Hundred Thousand Dollars ($300,000) converted into accounts payable or a ledger balance in connection herewith; (c) all accrued expenses of the ClosingSeller to be set forth on the Closing Date Balance Sheet in accordance with Section 8.1 hereof; (d) all current sales tax payable by the Seller to be set forth on the Closing Date Balance Sheet in accordance with Section 8.1 hereof; (e) all deferred revenue of the Seller to be set forth on the Closing Date Balance Sheet in accordance with Section 8.1 hereof; (f) all notes payable of the Seller (including the current portion of the Seller's long term debt) to be set forth on the Closing Date Balance Sheet in accordance with Section 8.1 hereof; (g) all capitalized lease obligations of the Seller to be set forth on the Closing Date Balance Sheet in accordance with Section 8.1 hereof; (h) subject to Section 1.8 hereof, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in Seller under the ordinary course Contracts accruing or to be performed from and after the Closing Date; and (i) all indemnities, warranties, service or other obligations and liabilities arising out of business and consistent with or relating to goods manufactured or sold or services provided by the terms of this Agreement which are outstanding at Seller on or before the time of the Closing, provided, however, that Buyer shall Closing Date. The Purchaser does not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided have no liability whatsoever for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out or obligation of any nature of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under other than the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Assumed Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale and purchase entry by the Bankruptcy Court of the Subject AssetsSale Order as set forth in Article 8 below, Buyer effective as of Closing: (a) PRC-Mississippi and VVI (together, "Debtors") shall assume as their obligations as provided in Section 8.2, and agree shall assign to Purchaser in writing, all of Sellers' right, title and interest in and to the Executory Contracts to which they are parties; (b) PBLLC shall assign to the Purchaser all Executory Contracts to which it is a party; (c) Purchaser shall assume the accrued liability of PRC-Mississippi as of Closing to pay the ultimate winnings owed to individuals playing progressive slot machines, games primary progressive reserve, games reserve for top awards, slots reserve for top awards, poker progressive reserve, gift shop certificate liability, lost and found money, customer safekeeping deposits, players club accrual (or discharge when due other outstanding complimentaries), outstanding chips/tokens and employee benefit accruals for holiday, vacation, personal day, sick day and severance benefits (collectively the "Casino Obligations"). 7 12 The progressive slot liability shall be determined by a meter reading by Purchaser and Seller at Closing. The remainder of the Casino Obligations shall be determined by Purchaser and Seller at Closing in accordance with their respective terms good and customary gaming practice. (d) Purchaser shall assume all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closingordinary course, and all ongoing liabilities and obligations of PBLLC incurred with respect to the operation of the Tower Hotel and Resort Hotel, including but not limited to the obligations to provide rooms to customers then staying at the hotel or who then have confirmed or unconfirmed reservations, to host meetings, conventions, banquets and other events then in progress or booked for future performance, to process cash payments, credit card and other payments for services rendered prior to and after Closing (with all expenses and receipts to be prorated as provided in Section 2.4), to provide continuing space and/or services to concessionaires, and obligations relating to lost and found, safekeeping deposits, outstanding complimentaries and discounts, and employee benefit accruals for holiday, vacation, personal day, sick day and severance benefits (collectively, the "Hotel Obligations"). (e) Purchaser shall assume all ordinary course, ongoing liabilities and obligations of PBLLC incurred with respect to the operation of the Marina, including but not limited to the obligations to provide temporary or indefinite mooring privileges to customers then having boats at the Marina or who have contracted for future mooring privileges, to process cash payments, credit card and other payments for services rendered prior to and after Closing (with all expenses and receipts to be prorated as provided in Section 2.4), and obligations relating to lost and found, long term storage, boat, motor and lift repairs and maintenance, outstanding discounts, and employee benefit accruals for holiday, vacation, personal day, sick day and severance benefits (collectively, the "Marina Obligations"). (f) Purchaser shall assume all ordinary course, ongoing liabilities and obligations of PBLLC incurred with respect to the operation of the Golf Course, including but not limited to the obligations to provide tee times and fulfill tournament reservations, to process cash payments, credit card and other payments for services rendered prior to and after Closing (with all expenses and receipts to be prorated as provided in Section 2.4), and obligations relating to lost and found, equipment rental, repairs, outstanding discounts, and employee benefit accruals for holiday, vacation, personal day, sick day and severance benefits (collectively, the "Golf Course Obligations," and together with the Casino Obligations, Hotel Obligations and Marina Obligations, the "Business Obligations"). The Purchaser shall execute written instruments of assignment and assumption satisfactory to Sellers, by Seller since which Purchaser shall agree to assume as Purchaser's primary obligations, and to timely pay and perform the Business Obligations and all obligations of the Sellers arising under the Executory Contracts, to the extent such obligations accrue from and after the date of the Base Balance Sheet Closing (collectively, the "Assumed Liabilities"). Before the hearing on the Sale Order, Debtors shall take all appropriate action to determine or to contest in good faith the ordinary course of business cure amounts required to be paid to the various other parties to the Executory Contracts in order to permit the assumption by Debtors and consistent with the terms of this Agreement which are outstanding at the time assignment to Purchaser thereof pursuant to Section 365 of the Bankruptcy Code, and Debtors at their sole option shall either pay all such cure amounts in cash no later than Closing, provided, however, that Buyer or shall not assume and shall not direct Purchaser in writing to pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising such cure amounts out of the inclusion Cash Consideration otherwise required by this Agreement to be paid to Sellers at Closing. Other than the Assumed Liabilities and the Permitted Encumbrances, Purchaser is not assuming or, agreeing to pay for any liabilities or obligations of Seller in any group filing consolidatedSellers, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under take the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect Assets subject to any options, warrants, agreements liability or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesencumbrances.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale and purchase of the Subject Assetsconditions described in Article II, at Closing, Buyer shall shall, pursuant to an Assumption Agreement substantially in the form of Exhibit A (the “Twin Cities Assumption Agreement”), assume and agree to pay or pay, perform, satisfy and discharge when due in accordance with their respective terms all due, to the extent not theretofore paid, performed, satisfied and discharged, the following known and identifiable liabilities of Seller shown or reflected Twin Cities existing on the Base Closing Date, except for the Twin Cities Retained Liabilities (collectively, the “Twin Cities Assumed Liabilities”): (i) all of Twin Cities’ short-term liabilities reflected in the Interim Balance Sheet which are outstanding at in the time amounts shown thereon; (ii) all of Twin Cities’ short-term liabilities incurred after the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Interim Balance Sheet Date in the ordinary course of business in accordance with past practice that are required to be reflected in the Closing Balance Sheet in accordance with GAAP, in the amounts shown thereon, including all short-term liabilities included in Net Asset Value and consistent with the terms all orders from Twin Cities’ customers (other than any Liability in respect of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining any such order arising from any breach or nonperformance thereof prior to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinClosing Date), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities all of Seller Twin Cities’ liabilities set forth in the terms of the Contracts, offers and solicitations that are identified in Section 1.1(a)(viii) (other than any Liability under any such Contract, offer or solicitation arising from any breach or nonperformance thereof prior to its dissenting Shareholders, if any, under the Massachusetts Business Corporation LawClosing Date); (iv) Liabilities all of Seller with respect Twin Cities’ liabilities under Governmental Authorizations and all pending applications for issuance or renewal thereof that (A) are transferable to Buyer hereunder and (B) are either (1) listed on Schedule 4.14 or 4.22 or (2) are obtained or submitted by Twin Cities after the date hereof and on or prior to the Closing Date (other than any options, warrants, agreements Liability under any such Governmental Authorization or convertible application arising from any breach or other rights nonperformance thereof prior to acquire any shares of its capital stock of any classthe Closing Date); and (v) Liabilities in connection with or relating to all actionsliabilities of Twin Cities for all transfer, suitsdocumentary, claimssales, proceedings, demands, assessments use and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any motor vehicle taxes that result from the sale of the foregoing. The liabilities Twin Cities Assets pursuant to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAgreement.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of this Agreement, and in reliance upon the Subject Assetsrepresentations, warranties, and agreements set forth herein, Buyer shall agrees to assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time as of the Closing, and to thereafter perform and discharge all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet following Liabilities with respect to the Business and the Transferred Assets (collectively, the “Assumed Liabilities”): (a) excluding all Liabilities set forth in Section 2.4(c), and excluding any Liability to pay third parties for Inventory included in the ordinary course of business Transferred Assets and consistent with reflected in the terms of this Agreement which are outstanding at Final Inventory Value, as finally determined in accordance herewith, all Liabilities solely to the time extent arising under the Assumed Contracts (i) to furnish goods, services, and other benefits to another party after the Effective Time, (ii) to pay for goods, services, and other benefits that another party will furnish to it after the Effective Time, and (iii) without limiting the generality of the Closingforegoing clauses (i) and (ii), to the extent such Liabilities arise out of or relate to events, facts, circumstances, occurrences, conditions or periods occurring after the Effective Time (provided, however, that Buyer a Liability shall not assume and shall not pay be deemed to relate to such events, facts, circumstances, occurrences or conditions merely because a related Action is brought after the following liabilities: (i) Liabilities incurred by Seller in connection Effective Time with this Agreement and the transactions provided for hereinrespect to events, includingfacts, without limitationcircumstances, counsel and accountant fees, and expenses pertaining occurrences or conditions occurring prior to the performance by Seller of its obligations hereunderEffective Time); (iib) Taxes (as defined in Section 2.08 hereof) all Ordinary Course of Seller (whether relating to periods before Business Liabilities and charges for promotional and advertising materials and services, marketing expenses, disbursements, coupon redemptions, co-op fees, temporary price reductions, free goods, off-invoice discounts, trade promotions, and promotional allowances which are redeemed, paid, or otherwise become due at or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller Effective Time with respect to any options, warrants, agreements Product sold at or convertible after the Effective Time (the “Promotional Liabilities”); (c) all Liabilities and charges for or other rights to acquire associated with any shares of its capital stock return of any classProduct sold by the Business or either Seller in the Ordinary Course of Business on or prior to the Closing Date (the “Return Liabilities”); and (vd) Liabilities the Xxxxxxxxxxx Indebtedness to the extent included in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesXxxxxxxxxxx Indebtedness Estimate.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon In connection with the sale transactions contemplated by Section 2.1, and purchase except as set forth in Section 2.4, TreeHouse shall, and shall cause the TreeHouse Parties to, assume on a joint and several basis with TreeHouse, and to pay, comply with and discharge all contractual and other Liabilities of Dxxx or its Subsidiaries arising out of the Subject Assetsownership or use of the Transferred Assets or the operation of the Transferred Businesses, Buyer shall assume whether due or to become due, including: (a) all Liabilities of Dxxx and agree to pay its Subsidiaries that are reflected, disclosed or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected reserved for on the Base Balance Sheet which are outstanding at Sheet, as such Liabilities may be increased or decreased in the time operation of the Closing, and all liabilities and obligations incurred by Seller since Transferred Businesses from the date of the Base Balance Sheet in through the ordinary course Distribution Date; (b) all Liabilities of business Dxxx and consistent with its Subsidiaries under or related to the terms of this Agreement which are outstanding at Real Estate Leases, the time of Personal Property Leases and the ClosingContracts, provided, however, that Buyer shall not assume and shall not pay the following liabilities: such assumption to occur as (i) assignee if such Real Estate Leases, Personal Property Leases and Contracts are assignable and are assigned or otherwise transferred to TreeHouse, or (ii) subcontractor, sublessee or sublicensee as provided in Section 6.2 if such assignment of such Real Estate Leases, Personal Property Leases and Contracts and/or proceeds thereof is prohibited by law, by the terms thereof or not permitted by the other contracting party; (c) all Liabilities incurred by Seller of any Dxxx Party related to the Business Employees (as defined in connection with this Agreement and the transactions provided for herein, Employee Matters Agreement) including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderSpecified Employee Liabilities; (iid) Taxes (as defined in Section 2.08 hereof) all Liabilities of Seller (Dxxx and its Subsidiaries related to any and all Actions asserting a violation of any law, rule or regulation arising out of the operations of the Transferred Businesses or the ownership or use of the Transferred Assets, whether relating to periods before or after the transactions contemplated Distribution Date and all Liabilities relating to Assumed Actions; (e) all Liabilities for which TreeHouse is liable in this Agreement or accordance with the terms of the Operating Agreements; (f) if registration of the TreeHouse Common Stock occurs and trading of the TreeHouse Common Stock commences, up to $10,000,000 of fees and expenses incurred by Seller Dxxx and TreeHouse in connection with (i) drafting, negotiating and implementing this Agreement Agreement, the Stockholders Agreement, the Employment Agreements or any of the Operating Agreements and (ii) planning, analyzing and executing the transactions provided for herein), including any liability for Taxes Distribution; and (g) all other Liabilities of Dxxx and its Subsidiaries arising out of the inclusion ownership or use of Seller in any group filing consolidatedthe Transferred Assets or the operation of the Transferred Businesses, combined or unitary tax returns whether existing on the date hereof or arising out of at any transferee liability; (iii) Liabilities of Seller time or from time to its dissenting Shareholderstime after the date hereof, if anyand whether based on circumstances, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any optionsevents or actions arising heretofore or hereafter, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out such Liabilities shall have been disclosed herein, and whether or not reflected on the books and records of third-party claims), including, without limitation, interest, penalties, reasonable attorney Dxxx and accountant fees its Subsidiaries or TreeHouse and all amounts paid in investigation, defense its Subsidiaries or settlement of any of the foregoingBalance Sheet. The liabilities Liabilities described in this Section 2.3 are referred to be assumed by Buyer under in this Agreement are hereinafter sometimes referred to collectively as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Assumed Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.”

Assumption of Liabilities. Upon Subject to Section 2.5 hereof, upon the sale terms and purchase subject to the conditions of the Subject Assetsthis Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding effective at the time of the Closing, and all liabilities and obligations incurred by Seller since Newco shall assume only (a) the date Liabilities under the Assumed Contracts first arising out of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or such Assumed Contracts after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein)Closing Date, including any liability for Taxes (b) warranty obligations arising out of the inclusion of Seller in any group filing consolidatedsales orders identified on Schedule 2.3, combined or unitary tax returns or (c) service, parts, and maintenance obligations arising out of the service contracts set forth on Schedule 2.3, (d) paid time off (“PTO”) obligations of Credence with respect to the Designated Employees as of the Closing Date of no more than $600,000 (the “Assumed PTO”) as set forth on Schedule 2.3, (e) without duplication, Liabilities arising out of Newco’s ownership of the Purchased Assets, but only to the extent such Liabilities arise out of facts, events or circumstances occurring after the Closing Date, (f) commission amounts for which Credence becomes obligated to pay to distributors, employees, or contractors arising out of sales of Products for which Newco receives the corresponding revenue, (g) any transferee liability; and all immigration-related liabilities and obligations under X-0X, X-0, XX and F-1 visas held by, or under U.S. permanent residence (iiigreen card) Liabilities processes of, any Designated Employees that become employed by Newco as set forth on Schedule 2.3, and (h) the liabilities expressly disclosed on Schedule 2.3 (collectively, the “Assumed Liabilities”). Without limiting the rights of Seller Newco with respect to Article 8, each of Hypervision and Hypervision Taiwan shall retain its dissenting Shareholdersrespective Liabilities, if any. Subject to the provisos above, Credence and Newco expressly agree that all other Liabilities shall be Excluded Liabilities. For the purposes of this Agreement, unless such Liability or obligation is expressly addressed in another manner under this Agreement (e.g. by constituting an Excluded Liability), an obligation to make a payment under an Assumed Contract shall be deemed to first arise under such Assumed Contract after the Massachusetts Business Corporation Law; (iv) Closing Date only to the extent such payment obligation is due after the Closing Date and pertains to services rendered to, property purchased by or rights enjoyed by Newco after the Closing Date and do not include any accounts payable of Credence or its Subsidiaries or any Liabilities arising under such Assumed Contracts prior to or on the Closing Date. For example, a license fee payable quarterly under an Assumed Contract shall be pro rated over the applicable quarter such that Credence shall be responsible for the portion of Seller with respect the license fee pertaining to the portion of the quarter prior to the Closing Date and Newco shall be responsible for the portion of the license fee pertaining to the portion of the quarter after the Closing Date. As another example, the payment obligations of Credence or any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock Affiliates for inventory transferred to Newco pursuant to this Agreement but for which Credence has not yet remitted payment shall be Excluded Liabilities. For purposes of further clarity, Newco shall not assume (nor be deemed to assume) any class; and (v) Liabilities in connection with or obligations relating to all actionsto, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims)or resulting from the Assumed Contracts relating to, includingarising out of or resulting from any acts, without limitationfacts, interestcircumstances or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed, penalties, reasonable attorney each on or before the Closing Date (which Liabilities shall remain the obligations of Credence and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “shall constitute Excluded Liabilities).” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon The Purchaser hereby agrees, subject to Section 1.6 hereof and the sale other terms and purchase conditions of this Agreement, that on and after the Subject Assets, Buyer Closing Date it shall assume and agree to pay or fully and timely perform, discharge when due and pay, in accordance with their respective terms terms, all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by of the Seller since relating to: (a) the deposit accounts attributed to the Branches as of the close of business on the day immediately preceding the Closing Date (including, without limitation, all checking, savings, certificate of deposit, individual retirement, Keogh, money market, time deposit, repurchaxx xxreements and sweep accounts; provided, however, that it shall not include those certain swap account listed on Exhibit 1.5(a)(i) hereto) together with all accrued interest relating to such deposit accounts, such deposit accounts as of July 18, 2005, being listed on Exhibit 1.5(a)(ii) hereto (which Exhibit shall be updated to reflect new deposits made and deposits withdrawn or paid between the date of this Agreement and the Base Balance Sheet Closing Date) and shall be delivered to the Purchaser at the Closing (collectively, the "Deposit Liabilities"); (b) the Loans; (c) all obligations relating to all escrow funds and dealer reserves under the Loans listed on Exhibit 1.5(d); (d) the leases, equipment leases and operating contracts listed on Exhibit 1.3(e); (e) all safe deposit boxes and all rental agreements and contracts for the safe deposit boxes located at the Branches as of the Closing Date; (f) the operation from and after the Closing Date of the Branches in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for hereinbusiness, including, without limitation, counsel the payment or provision of salary, compensation and accountant fees, and expenses pertaining employee benefits to the performance by Seller of its obligations hereunderEmployees (as hereinafter defined) arising from and after the Closing Date; (iig) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out obligations of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholderspay the remaining two (2) installments each in the amount of Ten Thousand Dollars ($10,000.00) to the Economic Development Corporation of Clarksville, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classTennessee; and (vh) Liabilities all liabilities or obligations which are expressly identified elsewhere in connection with this Agreement as being assumed, performed, discharged or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of by the foregoingPurchaser. The liabilities and obligations described in this Section 1.5 that the Purchaser hereby agrees to be assumed by Buyer under assume and fully and timely perform, discharge and pay are referred to collectively in this Agreement are hereinafter sometimes referred to as the “"Assumed Liabilities,” ". On and after the Closing Date, the Seller shall have no duties, responsibilities, liabilities which are not assumed by Buyer or obligations under this Agreement are hereinafter sometimes referred or with respect to as the “Excluded Assumed Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale terms and purchase of conditions set forth herein, from and after the Subject AssetsClosing, Buyer Purchaser shall assume and agree to satisfy, perform, pay or and discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on solely the Base Balance Sheet which are outstanding at the time of the Closing, and all following liabilities and obligations incurred by of Seller since (paragraphs (a), (b), (c) and (d) below, collectively, the date “Assumed Liabilities”): (a) liabilities and obligations of the Base Balance Sheet Seller under Included Contracts included in the ordinary course of business and consistent with Assets that, by the terms of this Agreement which are outstanding at such Included Contracts, arise after the time Closing (other than by virtue of a default or violation of any Included Contract occurring prior to the Closing), providedrelate to periods following the Closing and are to be observed, howeverpaid, that Buyer shall not assume and shall not pay discharged, or performed as the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and case may be, at any time after the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderClosing; (iib) Taxes (Seller’s obligations to its customers under its standard Warranty Policy, as defined described in Section 2.08 hereof2.3(b) of Seller the Disclosure Schedule (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii“Warranty Obligations”) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any optionsproducts sold prior to (or after) the Closing and relating to Assets or the Divisions; (c) accounts payable, warrantscustomer deposits and accrued expenses of each of the Divisions as of the Closing Date, agreements or convertible or other rights in each case as identified on Section 2.3(c) of the Disclosure Schedule (the “Payables Schedule”), provided that the Seller shall update the Payables Schedule within thirty (30) days after the Closing to acquire reflect any shares additions to accounts payable, customer deposits and accrued expenses as of its capital stock of any classthe Closing Date; and provided, further that Purchaser shall not assume accounts payable which have been outstanding and are past due for longer than sixty (60) days prior to the Closing Date; and (vd) Liabilities liabilities and obligations expressly assumed by Purchaser pursuant to Article IX. (e) Within thirty (30) days after the Closing Date, Seller shall prepare and deliver to Purchaser a schedule identifying the accounts receivable acquired by the Purchaser pursuant to this Agreement, and the accounts payable and the purchases which will result in connection with or accounts payable (“Purchases Clearing”) assumed by the Purchaser pursuant to this Agreement (the “Payables Adjustment Schedule”). The Payables Adjustment Schedule will include a determination of the amount by which such accounts receivable exceeds such accounts payable and Purchases Clearing (the “Closing Date Net Receivables”). If the Closing Date Net Receivables is less than $ , Seller shall retain such accounts payable relating to all actions, suits, claims, proceedings, demands, assessments the Divisions and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether the Assets so that the Closing Date Net Receivables equals or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any exceeds $250,000. For purposes of the foregoing. The liabilities Payables Adjustment Schedule, accounts receivable excludes prepaid expenses relating to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” Assets and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred Divisions and accounts payable and Purchases Clearing excludes unpaid commissions, accrued expenses and customer deposits relating to as the “Excluded LiabilitiesAssets and the Divisions.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase Subject to satisfaction of the Subject terms and conditions hereof, including the transfer of the Assets to Buyer, as of the Closing, Buyer and Buyer Parent (as it relates to (f) below) will pay, perform, and assume the following liabilities of Seller and Seller Parent (as it relates to (f) below) and will perform all of the following duties, responsibilities and obligations of Seller and Seller Parent (as it relates to (f) below): (a) All of the Seller’s obligations relating to Deposit Liabilities; (b) To the extent the Federal Home Loan Bank consents to such assumption, all of Seller’s obligations under those certain loans made from the Federal Home Loan Bank described on Schedule 10, including all Accrued Interest as of the Closing Date (the “FHLB Advances”), it being understood and agreed that Seller and Buyer will each employ commercially reasonable efforts to obtain consent of the Federal Home Loan Bank to such assumption; (c) All of the accounts payable related to the Assets, Buyer shall assume which accounts payable are described in Schedule 11 (the “Accounts Payable on Account of Assets”); (d) All of Seller’s obligations relating to the leases, licenses and agree to pay other contracts identified on Schedules 1 and 12, if such leases or discharge when due other contracts are assignable in accordance with their respective terms terms; (e) The safe deposit business of Seller, including, but not limited to, the obligations under the agreements related thereto and the maintenance of all liabilities necessary facilities for the use of Seller shown or reflected on safe deposit boxes by the Base Balance Sheet which are outstanding at the time of the Closing, renters thereof; and (f) Any and all liabilities and obligations incurred by Seller since the date relating to, or arising out of the Base Balance Sheet in the ordinary course obligations of business and consistent with the terms of this Agreement which are outstanding at the time Seller Parent under each of the Closingtrust preferred issuances described on Schedule 14, including any and all accrued and/or deferred interest (the “Trust Preferred Obligations”), pursuant to a supplemental indenture in form mutually acceptable to the Buyer Parent, Seller Parent and the trustee thereof (the “Supplemental Indenture”) and the guaranty agreement and such other documents as may be required pursuant to the documents governing such Trust Preferred Obligations; provided, however, that Buyer Parent shall not only be obligated to assume the Trust Preferred Obligations if and shall not pay to the following liabilities: extent that (i) Liabilities incurred all applicable regulatory approval in respect of the assumption of the Trust Preferred Obligations by Seller in connection with this Agreement Buyer Parent is granted and confirmation is received that the transactions provided for herein, including, without limitation, counsel and accountant feesTrust Preferred Obligations will receive that same capital treatment if assumed by Buyer Parent as the Trust Preferred Obligations received prior to such assumption, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes Seller Parent possesses the requisite capital and committed financial capability to fully perform all obligations contemplated hereunder; (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The foregoing liabilities to will be assumed by Buyer under this Agreement are hereinafter sometimes referred to collectively as the “Liabilities,” ”). Buyer will not assume and the will not discharge nor be liable for debts, liabilities which are not or obligations of Seller except those Liabilities expressly assumed by Buyer under pursuant to the transactions contemplated by this Agreement are hereinafter sometimes referred to as Agreement. After the “Excluded LiabilitiesClosing, all Liabilities shall be the sole obligation of Buyer and Buyer Parent.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of At the Closing, Cheniere, Investments, and General Partner agree that the Partnership will assume or reimburse the following (collectively, the "Assumed Liabilities"): (i) The Partnership shall reimburse or directly pay on behalf of the Cheniere Entities at the Closing: (A) all liabilities and obligations non-Affiliate third party accounts payable (including legal fees related to the FERC permitting) incurred by Seller since the date Cheniere Entities and directly related to the Project, which accrued between June 30, 2002 through the Closing Date; and (B) all payment obligations the Cheniere Entities have incurred, regardless if incurred prior to June 30, 2002, under the ENE Agreement and Technip Agreement; provided, however, that the Partnership shall only be obligated to reimburse or directly pay on behalf of the Base Balance Sheet Cheniere Entities (as the case may be) those accounts payable (X) listed and described on Schedule 2.1(c)(i), which as of the Effective Date, shall include all accounts payable from June 30, 2002 through July 31, 2002 and shall be updated on or before September 10, 2002 to include those accounts payable from August 1, 2002 through August 31, 2002 and (Y) those non-Affiliate third party accounts that are incurred in the ordinary course of business and consistent with between September 1, 2002 through the terms of this Agreement which are outstanding at the time of the Closing, Closing Date; further provided, however, that Buyer in no event shall not the Partnership be responsible for or assume and shall not pay more than $300,000 of non-Affiliate third party accounts payable incurred prior to the following liabilities: (i) Liabilities incurred by Seller in connection with this Closing Date, excluding the payment obligations under the ENE Agreement and the transactions provided for hereinTechnip Agreement (collectively, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder"Assumed Accounts Payable"); (ii) Taxes (as defined in Section 2.08 hereof) The Partnership shall reimburse or directly pay on behalf of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or Cheniere Entities at the Closing, all payables incurred by Seller the Cheniere Entities in connection with this the ordinary course under the Contracts (but excluding the Employment Agreement between Cheniere and Xxxxxxx Xxxxxx) between June 30, 2002 through the transactions provided for hereinClosing Date (the "Assumed Contract Payables"), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities The Partnership shall assume the Royalty (as defined in the Crest Settlement) payment obligation contained in and pursuant to Section 1.03(a) of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation LawCrest Settlement for gas processed and produced solely at the Project after Closing; (iv) Liabilities of Seller with respect The Partnership shall assume all obligations directly related to the Contributed Assets accruing from and after the Closing Date; (v) The Partnership shall assume any options, warrants, agreements salary or convertible or other rights bonus payable to acquire any shares of its capital stock of any classthe Management Team accruing from and after the Closing Date; and (vvi) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments The Partnership shall reimburse Cheniere at Closing $75,000 for salary and judgments, costs, losses, liabilities, damages, deficiencies and other overhead expenses (whether or not arising out of third-party claimsthe "Cheniere Payable"), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.;

Assumption of Liabilities. Upon From and after the sale and purchase of the Subject AssetsEffective Time, Buyer shall Buyers agree to assume and agree to timely pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on and perform the Base Balance Sheet which are outstanding at the time of the Closing, and all following liabilities and obligations incurred by Seller since (collectively, “Assumed Liabilities”): (a) the date obligations of Sellers under and pursuant to the terms and conditions of the Base Balance Sheet in Preneed Agreements not excluded from the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining Assets pursuant to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein1.2(l), including any liability certificates or benefits associated therewith, as well as all Services in Progress (as defined below); (b) the obligations of Sellers under and pursuant to the terms and conditions of the Real Property Leases (if any) and the Assumed Contracts; (c) upon the transfer of the Preneed Trust Funds and/or Endowment Care Funds, Buyers will assume and thereafter in due course pay, perform and discharge the liabilities and obligations of Sellers arising from and after the Effective Time under the terms of or in connection with the Preneed Trust Funds and/or Endowment Care Funds; (d) all obligations of Sellers arising via contract, stipulation, memorandum of understanding, agreement, consent, or under applicable Law for Taxes any construction, repair, remodeling, or development project with respect to the Business arising from and after the Effective Time; (e) the following liabilities and obligations arising out of or in connection with the inclusion of Seller Real Property, the Improvements or the Business: (i) any all issues or conditions identified with reasonable particularity in any group filing consolidated, combined Phase I Environmental Site Assessments; (ii) all issues or unitary tax returns or arising out of conditions identified with reasonable particularity in any transferee liability; Property Condition Assessment; and (iii) Liabilities of Seller to its dissenting Shareholdersany fact, if anymatter, under condition, deficiency, encumbrance, or encroachment reflected or referenced in any Title Commitment or Survey, other than (A) monetary liens or encumbrances affecting the Massachusetts Business Corporation Law; Real Property and Improvements shown on any Title Commitment or Survey, and (ivB) Liabilities of Seller with respect to matters not shown on any optionsTitle Commitment or Survey (collectively, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classthe “Assumed Matters”); and (vf) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, lossesobligations, liabilities, damages, deficiencies and/or duties relating to the Business and expenses (whether or not first arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney from and accountant fees and all amounts paid in investigation, defense or settlement of any of after the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesEffective Time.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On the sale terms and purchase of subject to the Subject Assetsconditions and limitations set forth in this Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time Closing, Purchaser shall assume, effective as of the Closing, the following (and all liabilities and obligations incurred by Seller since only the date following) Liabilities of Sellers (without duplication) existing as of the Base Balance Sheet Closing (collectively, the “Assumed Liabilities”) and no others: (a) all Liabilities of Sellers (including liabilities in respect of customer and security deposits and prepaid items) under the Purchased Contracts, Purchased Leases, Assigned Permits and Assigned Benefit Plans and Policies that arise on or after the Closing Date or that arise prior to the Closing Date to the extent requiring performance after the Closing Date (including, for the avoidance of doubt, lessor property Taxes payable by the lessee as additional rent or otherwise pursuant to the terms of a Purchased Lease); (b) all Assumed Trade Payables; (c) Reserved; (d) subject to Section 3.1(d), all 503(b)(9) Claims; (e) all Customer Programs Liabilities incurred in the ordinary course of business; (f) subject to Section 2.4(h) and Section 9.5, all Employee Liabilities; (g) all Warranty Obligations; (h) Administrative Professional Claims, if any, that become allowed after the Closing, up to an amount equal to the excess, if any, of the Administrative Professional Claims Cap over the Administrative Professional Claims Closing Amount; and (i) Liability for Taxes due or payable that arise after the Petition Date in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion ownership or current operation of Seller the Purchased Assets, except for Income Taxes described in Section 2.4(c) and, subject to Section 11.1, Transfer Taxes. Notwithstanding the foregoing and for the avoidance of doubt, Assumed Liabilities shall not include any group filing consolidated, combined or unitary tax returns Liability relating to or arising out of any transferee liability; (iii) Liabilities violation of Law by, or any Legal Proceeding against, any Seller to its dissenting Shareholdersor any breach, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements default or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities violation by any party hereunder shall not enlarge Seller of or under any rights of third parties under contracts or arrangements with Buyer or SellerPurchased Contracts, Purchased Leases, Assigned Permits and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilitiesAssigned Benefit Plans and Policies, other than the Cure Amount.

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at Assignment, Assignee assumes and agrees to pay, perform, and discharge the time following duties, obligations, and liabilities (collectively, the "Assumed Liabilities"): (a) the performance of the Closingterms, providedconditions, howeverand covenants of, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided discharge of the share attributable to the Assigned Interests of the duties, obligations, and liabilities arising under the terms of, the Leases and the Contracts for hereinthe period from and after the Effective Time, including, without limitation, counsel the share attributable to the Assigned Interests of the duties, obligations and accountant feesliabilities of Assignor arising under that certain Exploration Agreement dated April 7, 2006, by and among Source Rock Resources, Inc., Aurora Energy, Ltd., and expenses pertaining Assignor, and that certain Exploration Agreement dated January 27, 2006, but effective November 1, 2005, by and between Aurora Energy, Ltd., and Assignor; (b) subject to the performance by Seller terms of its the Redemption Agreement, all obligations hereunder; and liabilities of Assignor for the payment of money with respect to the Assigned Interests (ii) Taxes (as defined in Section 2.08 hereof) including, without limitation, the payment of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or all costs and expenses incurred by Seller in connection with this Agreement the Assigned Interests and the transactions provided for herein), including any liability for Taxes arising out payment of the inclusion share attributable to the Assigned Interests of Seller all royalties, overriding royalties, and other similar burdens on production, as well as all rentals, shut-in any group filing consolidatedwell payments, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholdersminimum royalties, if any, and other lease maintenance payments under the Massachusetts Business Corporation Law; (ivterms of the Leases) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments for the period from and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims)after the Effective Time, including, without limitation, interestall obligations and liabilities of Assignor for the payment of money with respect to the Assigned Interests arising under that certain Exploration Agreement dated April 7, penalties2006, reasonable attorney by and accountant fees among Source Rock Resources, Inc., Aurora Energy, Ltd., and Assignor, and that certain Exploration Agreement dated January 27, 2006, but effective November 1, 2005, by and between Aurora Energy, Ltd., and Assignor; (c) the share attributable to the Assigned Interests of all amounts paid in investigationobligations regarding the plugging and abandonment of all Wells and Personal Property and the performance of all related salvage, defense sitx xxxarance, and surface restoration operations from and after the Effective Time; (d) the share attributable to the Assigned Interests of all liabilities for injury to or settlement death of any person or other living thing, or loss or destruction of or damage to property affecting or relating to the Leases, Wells, and Personal Property to the extent that such liability, or the acts, xxxssions, events, or conditions giving rise thereto, arise, occur, or exist at or after the Effective Time; and (e) all other duties, obligations, liabilities, and claims, whether in contract, in tort, or arising by operation of law, accruing or resulting from, arising out of, or otherwise associated with the ownership, operation, development, production, and maintenance of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” Assigned Interests and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as marketing of Hydrocarbons produced therefrom or allocable thereto for the “Excluded Liabilitiesperiod from and after the Effective Time.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) Subject to the sale terms and purchase of the Subject Assetsconditions set forth in this Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, Purchaser agrees to assume and all liabilities thereafter pay, perform and obligations discharge the duties and responsibilities of Republic Bank (whether accrued, contingent or otherwise) that are incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of after the Closing, provided, however, that Buyer shall not assume and shall not pay only with respect to the following liabilities:(collectively, the “Liabilities”): (i) Liabilities incurred the Deposits, including XXX Accounts to the extent contemplated by Section 2.4; (ii) the Branch Leases, except for environmental work undertaken by Seller pursuant to Section 7.11; (iii) the Personal Property Leases; (iv) the Safe Deposit Agreements; (v) the Loans, and the servicing of the Loans pursuant to Section 2.5; (vi) the fees for which Purchaser is responsible under Sections 3.9 and 8.2, and any Taxes with respect to the Assets or the Branches for any taxable period (or portion thereof) that begins after the Closing Date; and (vii) the obligations assumed by Purchaser under Section 8.4 of this Agreement, which under no circumstance shall include any liability for any employment, change-in-control or other severance agreement or any payments under any Seller bonus or incentive program. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser shall not assume or be bound by any duties, responsibilities, obligations or liabilities of Seller, Republic or of any of their Affiliates, of any kind or nature, known, unknown, contingent or otherwise, including, without limitation, those (i) that do not relate to the Assets or the Liabilities; (ii) attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates) prior to the Closing Date in violation of any applicable laws, contracts or fiduciary duties; (iii) attributable to any causes of action, claims, suits or proceedings or violations of law or regulation attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates) prior to the Closing Date; (iv) for any Liability of Seller for Taxes other than the items set forth in Section 2.2(a)(vi); (v) for any Transfer Taxes or other costs and expenses arising in connection with the consummation of the transactions contemplated hereby for which Seller is responsible, including Sections 3.9 and 8.2; (vi) for any Liability of Seller for income Taxes arising in connection with the consummation of the transactions contemplated hereby (including any income Taxes arising because Seller is transferring the Assets); (vii) for any Liability of Seller for the unpaid Taxes of any Person under Treasury Regulation §1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise; (viii) any obligation of Seller to indemnify any person or entity by reason of the fact that such person or entity was a director, officer, employee, or agent of Seller or any of its Affiliates or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise); (ix) for any Liability of Seller or any Affiliate for costs and expenses incurred in connection with this Agreement and the transactions provided contemplated hereby; (x) for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) any Liability or obligation of Seller under this Agreement; (whether xi) any matters excluded pursuant to Section 7.11; (xii) relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, deposit excluded under the Massachusetts Business Corporation Law; definition of Deposit, including Xxxxx Account deposits; or (ivxiii) Liabilities of Seller with respect arising from circumstances, events or conditions prior to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and the Closing Date and not expressly assumed hereunder (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as collectively the “Excluded Liabilities”).” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. (a) Upon the sale terms and purchase subject to the conditions set forth in this Agreement, as of the Subject AssetsClosing Date, Buyer agrees to assume, satisfy, perform, pay and discharge only the following Liabilities (the “Assumed Liabilities”): all Liabilities of Seller under the Assumed Contracts, but only to the extent such Liabilities arise from any event, circumstance or condition occurring in a period (or portion thereof) following the Closing (any pro-rated portion of Liabilities that relate to pre-Closing periods shall assume remain Liabilities of Seller) (for avoidance of doubt, Seller’s obligation under that certain Asset Purchase Agreement dated June 16, 2003 (the “Nastech Agreement”), by and agree between Seller and Nastech Pharmaceutical Company, Inc. (“Nastech”), to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on Nastech $2,000,000 (the Base Balance Sheet which are outstanding at “Nastech Payment”)in the time event the United States Patent and Trademark Office issues a patent to Nastech claiming priority from any of the ClosingSpray Patent Applications, is an Assumed Liability provided Nastech assigns all rights relating to such patent and all related applications to Buyer). (b) Notwithstanding anything contained in this Agreement to the contrary, from and after the Closing Date, Seller shall retain, and Buyer shall have no liability with respect to all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:Liabilities (“Excluded Liabilities”): (i) all accounts payable and other Liabilities incurred by of Seller in connection for materials and services with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining respect to the performance by Seller manufacture of its obligations hereunderthe Products incurred prior to or on the Closing Date; (ii) Taxes (as defined in Section 2.08 hereof) all Liabilities of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee product liability, patent infringement, breach of warranty or similar claim for injury to person or property which resulted from the use or misuse of Products sold prior to or on the Closing Date (including all Actions or Proceedings relating to any such Liabilities); (iii) all Liabilities of Seller arising out of government seizures, field corrections, withdrawals or recalls of Products which relate to its dissenting Shareholders, if any, under Products sold on or prior to the Massachusetts Business Corporation LawClosing Date; (iv) all Liabilities of Seller with respect to any options, warrants, agreements or convertible litigation or other rights claims arising out of or relating to, directly or indirectly, the Purchased Assets (including the Products) to acquire the extent arising from any shares event, circumstance or condition occurring or alleged to have occurred prior to or on the Closing Date; (v) all Liabilities of its capital stock Seller arising out of any classuser or other similar fees payable to the FDA or other Governmental or Regulatory Authority to the extent that such fees are due and payable on account of the operation of the Business by Seller prior to the Closing Date; and (vvi) Liabilities in connection with any other Liability of Seller that is not an Assumed Liability under Section 3.01(a). (c) Seller and Buyer agree to prorate as of the Closing Date any amounts under the Assumed Contracts or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims)user or other similar fees payable to the FDA or any other Governmental or Regulatory Authority with respect to the Products which become due and payable after the Closing Date to the extent the benefit is attributable to the period on or prior to the Closing Date, including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities amount thereunder which are not assumed by Buyer under this Agreement are hereinafter sometimes referred paid prior to as the “Excluded LiabilitiesClosing Date to the extent the benefit is attributable to the period subsequent to the Closing Date.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon From and after the sale and purchase of Closing, the Subject Assets, Buyer shall assume and agree the Buyer hereby agrees to pay or pay, perform and discharge when due in accordance with their respective terms due, all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Seller, other than the Excluded Liabilities (the "Assumed Liabilities"), including but not limited to: (a) all trade payables and accruals; (b) all administrative expenses incurred during the Bankruptcy Case; (c) all liabilities, obligations and duties arising under any and all Assumed Executory Contracts; (d) all obligations and liabilities of the Seller with respect to Transferred Employees and Employees to the extent provided in the ordinary course of business and consistent with the terms Section 9 of this Agreement which are outstanding at the time and all obligations and liabilities of the ClosingSeller with respect to accrued commissions and bonuses; (e) any wages, providedsalary, howeverseverance, that bonuses, commissions, vacation or holiday pay, post retirement medical benefits, fringe benefits, long-term disability benefits, life insurance benefits, any duties, obligations or liabilities arising under any employee benefit plan, policy or practice, whether defined by Section 3(3), ERISA or otherwise, relating to Employees or other amounts due to any Employees or former employees of the Business (the Seller shall transfer to the Buyer shall all benefit plans, policies or practices, along with all associated funding vehicles, including but not assume limited to all reserves, trusts and shall not pay insurance contracts, and take all actions necessary to effect such transfers from the following liabilities:Seller to the Buyer); (f) all liabilities for damages to Persons or property arising out of alleged defects in Products manufactured by the Seller, or arising under warranties issued by the Seller; (g) all liabilities to repair or replace, or to refund the sales price (plus commercially reasonable related expenses) of, Products manufactured by the Seller which any customer claims to be defective; (h) all obligations and liabilities with respect to equipment and machinery owned by any customer of the Seller or any other third party and in the possession of the Seller; (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining all liabilities relating to the performance by Seller of its obligations hereunderor arising under Environmental Laws; (iij) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityall Transaction Fees; (iiik) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or all Taxes other rights to acquire any shares of its capital stock of any classthan U.S. federal income Taxes; and (vl) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAccepted Affiliate Payables.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon At the sale Closing, PGIO shall assume, and purchase of the Subject Assets, Buyer shall assume and agree to pay or pay, perform and discharge when due in accordance with according to their respective terms all liabilities of Seller shown or reflected on (if any), the Base Balance Sheet which are outstanding at following (and only the time of the Closing, and all following) liabilities and obligations incurred of IMS and its Affiliates arising primarily from or related primarily to the Purchased CD Business, and no other liabilities or obligations of IMS or its Affiliates (liabilities to be assumed by Seller since PGIO pursuant to this Section 1.4 being collectively referred to as the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:"Assumed Liabilities"): (i) Liabilities incurred all obligations of IMS or its Affiliates under the Business Contracts (other than Excluded Contracts) that are part of the Purchased CD Business that, by Seller the terms of such Business Contracts, arise after the Closing Date, relate to periods following the Closing Date and are to be observed, paid, discharged, or performed, as the case may be, in connection with this Agreement and each case at any time after the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderClosing Date; (ii) Taxes all unpaid liabilities and obligations, including trade accounts payable, of the Purchased CD Business (as defined in Section 2.08 hereof) but excluding all payables to IMS or any of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinits Affiliates), including any liability for Taxes arising out incurred in the Ordinary Course of Business and other similar current liabilities of the inclusion Purchased CD Business as may be included in the calculation of Seller in any group filing consolidatedWorking Capital under Section 1.7 hereof (collectively, combined or unitary tax returns or arising out of any transferee liabilitythe "Assumed Accounts Payable"); (iii) Liabilities of Seller any product warranty, product liability or product returns, rebates, coupons, allowances or other discounting and promotional commitments arising from any product line produced or sold by the Purchased CD Business that has not been discontinued prior to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Lawdate hereof; (iv) Liabilities any product warranty, product liability or product returns, rebates, coupons, allowances or other discounting and promotional commitments arising from any product line that has been discontinued prior to the date hereof by the Purchased CD Business, only to the extent of Seller any contingency reserve related thereto on the Closing Date Balance Sheet; (v) any liability, obligation or expense of any kind or nature relating to Taxes (other than corporate Taxes based upon the income of such entity), including sales and value added taxes, owed by IMS or any of its Affiliates (including any contractual liability with respect to Taxes of another Person) arising from the conduct of the Purchased CD Business, to the extent as included in the calculation of Working Capital under Section 1.7; provided that Transfer Taxes and Apportioned Obligations shall be paid in the manner set forth in Sections 5.2 and 5.3 hereof; (vi) except as set forth in Section 1.4(vi) of the Disclosure Schedule and with respect to any optionsmatter involving Taxes, warrantsany liability, agreements obligation, cost or convertible expense of IMS or other rights to acquire any shares of its capital stock Affiliates arising out of or relating to any classinvestigation, claim, action, suit, complaint, dispute, audit, demand, litigation or judicial, administrative or arbitration proceeding (collectively, "Legal Proceeding") as and to the extent it arose or arises from the Purchased CD Business to which IMS or any of its Subsidiaries is or was a party whether it relates to any time prior to, at or after the Closing (regardless of whether the Legal Proceeding is commenced before or after the Closing), and any contingency reserve related thereto; (vii) upon hiring of a Transferred Employee by the Company or a Subsidiary of the Company, any liability or obligation with respect to such Transferred Employee including all liabilities for accrued vacation pay, excluding any pension or similar liabilities; (viii) any liability, obligation or expense arising from the Business Purchased Intellectual Property after the Closing Date; and (vix) Liabilities in connection with any liability or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not obligation arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any from the conduct of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as Purchased CD Business after the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesClosing Date.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) On the sale terms and purchase subject to the conditions set forth in this Agreement, at the Closing, Purchaser shall assume as of the Subject AssetsClosing Date (i) all of the obligations or liabilities of Seller under the Assumed Contracts, Buyer excluding any liabilities arising out of Seller's breach of the Assumed Contracts prior to the Closing, (ii) all of the obligations and liabilities of Seller under the trade accounts payable, including intercompany trade accounts payable of Seller (except to the extent paid at Closing pursuant to Section 1.5 and other than trade accounts payable owed to Waterlink), and billxxxx xx excess of costs and accrued expenses, a true and complete list of which as of January 31, 2001 is set forth on SCHEDULE 1.2(a)(ii), (iii) the Severance Obligations (as defined in Section 7.1) and (iv) any liability of Seller for property, payroll and sales taxes incurred by Seller as of the Closing Date in the ordinary course of its business consistent with past practice, but only to the extent accrued and not yet payable as of the Closing Date (collectively, the "Assumed Liabilities"). On the terms and subject to the conditions set forth in this Agreement, at the Closing, Purchaser shall assume and agree to pay or pay, perform and discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on Seller's obligations under the Base Balance Sheet which are outstanding at Assumed Liabilities. (b) In no event shall the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: Assumed Liabilities include (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for hereininter-company payables or other obligations owing to Waterlink, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) any Tax liability of Seller (other than any liability for the Taxes assumed by Purchaser under Section 1.2(a)(iv)), (iii) the Employment Agreements (as defined in Section 2.08 hereof2.15(b)), (iv) any indebtedness for borrowed money owed by Seller to any Person except specifically for Item No. 60 in SCHEDULE 2.15, (v) obligations with respect to checks which have been written by Seller but not presented for payment, (vi) obligations with respect to litigation or Environmental Claims (as defined in Section 2.20(e)) against or affecting Seller and (vii) any retention or "stay" bonuses, including without limitation the retention and "stay" bonuses set forth on SCHEDULE 2.6. Seller will continue to be responsible for all obligations and liabilities of Seller (not expressly assumed by Purchaser, whether relating known or unknown and whether they arise prior to periods before or after in connection with the transactions contemplated in by this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or SellerAgreement, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilitiesSeller will satisfy each such obligation and liability as it becomes due.

Assumption of Liabilities. (a) Upon the sale terms and purchase of subject to the Subject Assetsconditions contained herein, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, Acquiror agrees to assume (i) all Liabilities accruing, arising out of, or relating to periods, events or occurrences happening after the Closing Date under (a) the Contracts, Permits, Facility Lease and all liabilities and obligations incurred Personal Property Leases identified on Schedule 4.8 as "Assumed Contracts" or "Assumed Leases"; (b) any Contract or Lease pertaining to the Business not required to be set forth on Schedule 4.8 which (1) is commercially reasonable as to its terms binding Seller, (2) is terminable by Seller since within twelve (12) months of Closing, without adverse recourse, (3) is reflected in the date Books and Records, (4) was entered into as a result of the Base Balance Sheet an arms' length negotiation in the ordinary course of business and consistent (5) would not, together with other such Contracts described in clause (b), create a Material Adverse Effect; and (c) under any other Contracts or Personal Property Leases that are not Assumed Contracts pursuant to the terms foregoing clauses (a) or (b) which Acquiror elects to accept and assume in its sole discretion (the "Additional Contracts"), excluding in each case any Liability for any Default under any Contract or Lease occurring on or prior to the Closing Date, and excluding, in each case, any intercompany Contracts of this Agreement which are outstanding at Seller or the time of Business, (ii) all Current Liabilities, and (iii) liability for real property, personal property and similar ad valorem taxes specifically apportioned to Acquiror pursuant to Section 10.7 hereof (collectively, the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:"Assumed Liabilities"). (ib) Liabilities incurred If Seller discovers an Additional Contract, it shall promptly give the Acquiror Parties written notice of such Additional Contract and a copy of such Additional Contract, and the Acquiror Parties shall have fifteen (15) days after the date such notice is received to notify Seller whether Acquiror elects to assume such Additional Contract in its sole discretion. If the Acquiror Parties fail to notify Seller of Acquiror's intention to assume such Additional Contract during such fifteen (15) day period, Seller may assume that Acquiror does not intend to assume such Additional Contract. If the Acquiror Parties discover an Additional Contract, Acquiror may assume such Additional Contract in its sole discretion by giving Seller in connection with written notice of its intention to assume such Additional Contract. Any Additional Contracts which Acquiror elects to assume pursuant to this Section 2.2(b) shall be deemed Assumed Contracts for purposes of this Agreement and the transactions provided for herein, including, without limitation, counsel Assignment and accountant fees, and expenses pertaining to the performance by Seller Assumption of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesContract Rights.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase As of the Subject AssetsPrimary Closing, Buyer Purchaser shall assume and agree to pay or perform and discharge when the following as they become due in accordance with their respective terms for all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, periods from and all liabilities and obligations incurred by Seller since after the date of the Base Balance Sheet Primary Closing, to the extent not previously performed or discharged: (i) all obligations of Seller which accrue and are to be performed from and after the Primary Closing (x) under those permits, authorizations, licenses, leases, rights of way, easements and other agreements related to the Business listed on SCHEDULES 2.01(a) and 2.01(g), (y) under those permits, authorizations, licenses, leases, rights of way, easements, subscriber and other agreements related to the Business which Manager in the ordinary course name of business Seller entered into, and consistent all other liabilities incurred by Manager on Seller's behalf, in accordance with the terms and conditions of this Agreement which are outstanding the Management Agreement, and (z) under the AWS agreements referred to in Section 2.03; and (ii) all other obligations of Seller entered into during the period from the date hereof to the Primary Closing by Seller and identified to and consented by Purchaser and specifically assumed by Purchaser at the time Primary Closing (all of such permits, authorizations, licenses, leases, rights of way, easements and other agreements referred to in items (i) and (ii) being referred to hereinafter as the Closing, provided, however, that Buyer "Assumed Liabilities"). Purchaser shall not assume be liable for any liabilities, debts, contracts, agreements, including without limitation any contracts or agreements set forth on Schedule 2.02, or other obligations of Seller of any nature whatsoever other than the Assumed Liabilities and it is expressly understood that Purchaser shall not assume, and shall not pay be liable for any of Seller's expenses or obligations relating to or accruing by reason of the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining proceedings relating to the performance by Seller of its obligations hereunder; FCC Authorization in FCC CC Docket 91-142 (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein"Risk Sharing Proceeding"), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect obligations relating to any optionssettlement thereof (such other liabilities, warrantsdebts, contracts, agreements or convertible or other rights to acquire any shares obligations of its capital stock of any class; and (v) Seller other than the Assumed Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes being referred to as the “"Non-Assumed Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities").” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) Without limiting Section 4(b) below, the sale Parties agree and purchase acknowledge that prior to the Closing Date, Seller will pay or reserve against the following liabilities: (i) sales commissions owed to the Members in connection with performed services as follows: (a) $23,925.86 to Rory Sheen; (b) $2,200 to Xxxxxxx Xxxxxxx; and (c) $4,800 to Xxxx Xxxx (which amounts include taxes withheld and paid to applicable agencies); (ii) fees of the Subject AssetsXxxxxx Law Corporation in connection with the EDD audit, Buyer shall assume not to exceed $10,000; (iii) fees of XxXxxxxxx Xxxxxxx O’Dea & Tooliatos, LLP in connection with this transaction, not to exceed the amount set forth in Section 23 of this Agreement; (iv) tax consultation expenses in connection with the transactions hereunder in the amount of $2,507; and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, (v) miscellaneous costs and all liabilities and obligations expenses incurred by Seller since the date of the Base Balance Sheet and Members in the ordinary course of business and consistent connection with the terms of transactions hereunder, not to exceed $5,000. (b) Notwithstanding any provision in this Agreement which are outstanding at or any other writing to the time of the Closingcontrary, provided, however, that Buyer shall not assume and shall not pay be liable for any liabilities and obligations of Seller, the Members or the Business of whatever nature whether presently in existence or arising hereafter. All such liabilities and obligations shall be retained by and remain liabilities and obligations of Seller (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume and shall not be liable for any of the following liabilities: liabilities or obligations of Seller or the Members: (i) Liabilities incurred any and all taxes levied by and owing to any foreign, federal, state or local taxing authority with respect to the ownership or use of the Assets or the conduct of the Business by Seller in connection with this Agreement and the transactions provided for herein, (including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; EDD Liability); (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating any liabilities or obligations related to periods before the Excluded Assets or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns which are not directly incident to or arising out of any transferee liability; or incurred with respect to the Business; (iii) Liabilities of Seller to its dissenting Shareholdersall lawsuits, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements claims and other liabilities or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities obligations arising in connection with or relating to all actions, suits, claims, proceedingsinvestigations or proceedings to the extent relating to the conduct of the Business or the ownership of the Assets by Seller; (iv) all liabilities or obligations relating to the employment, demandsfailure to employ or termination of employment of any individual with respect to the Business by Seller or relating to or under any labor agreements or employee benefit or compensation arrangements, assessments and judgmentsplans, costsprograms, lossespolicies, liabilities, damages, deficiencies and expenses (whether practices or not arising out of third-party claims)agreements, including, without limitation, interestseverance or accrued vacation pay, penalties, reasonable attorney and accountant fees and all amounts paid of Seller or for the benefit of employees of Seller; (v) any liability arising under Environmental Laws (as such term is defined in investigation, defense or settlement of any Section 5(j) hereof) with respect to the conduct of the foregoing. The liabilities Business by Seller; (vi) any indebtedness for borrowed money or otherwise; (vii) any amounts payable to be assumed by Buyer under this Agreement are hereinafter sometimes referred Seller’s affiliates; or (viii) any workers’ compensation claims relating to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesemployees of Seller.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) On the sale and purchase of the Subject AssetsClosing Date, Buyer will absolutely and irrevocably assume (subject to the terms of this Agreement), and Buyer shall assume have the benefit of, pay and agree to pay or discharge when due perform in accordance with their respective terms all terms, only the following liabilities and obligations of Seller shown related to the Assets arising on and after the Closing Date (when the same become due or are required to be performed or discharged): (i) all of the Seller's liabilities, as described and reflected on the Base Closing Balance Sheet which are to the extent those liabilities remain outstanding at on the time of the Closing, Closing Date and all other liabilities and obligations incurred by Seller since the date of the Base Closing Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes Ordinary Course (as defined in Section 2.08 hereof6.29(d)) of the Business and without any breach of this Agreement; provided, however, the Buyer will not assume the following: (A) any of the Seller's outstanding debt obligations related to borrowed money; (B) any of Seller's dividends or distributions payable to members of Seller of their affiliates; (whether relating C) any of Seller's intercompany or related party liabilities or obligations; (D) any liability for income taxes of Seller or its members; (E) any obligation of Seller to periods before indemnify any person by reason of the fact that such person was a manager, officer, employee of the Seller or after the transactions contemplated in this Agreement any other person; (F) any liability arising from or incurred by Seller in connection with this Agreement any laws relating to emissions, discharges, releases or threatened releases of pollutants contaminants, chemicals or hazardous substances or wastes into the environment; (G) other than those liabilities specifically assumed pursuant to Section 4.1(a)(iii) and the transactions provided for herein)Article 5, any liability or obligation of Seller under any employee benefit plan, program or arrangement or employee or consultant compensation program or agreement, including without limitation those liabilities specifically not assumed pursuant to Article 5; (H) any liabilities that arise from, out of, in connection with, or as a result of any alleged or actual breach of warranty (whether express 7 14 or implied) or any other theory of liability relating to any product manufactured, designed, distributed, leased or sold by or for Seller or its predecessors prior to the Closing Date; (I) any liability for Taxes arising out of, or related to any prior or existing dealer arrangement of the inclusion of Seller in any group filing consolidatedSeller, combined or unitary tax returns or arising out the termination of any transferee liability; such dealer arrangement or any transactions or agreements between Seller and its current or former dealers; (iiiJ) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities any liability of Seller with respect to any optionslawsuit currently pending to which Seller is a party (whether plaintiff, warrants, agreements or convertible defendant or other rights party); and (K) any liability or obligation of Seller or the Seller's predecessors arising out of the Seller's or the predecessor's acquisition of the Assets or the Business. (ii) liabilities, arising from and after the Closing Date, to acquire pay when due amounts owing and to perform executory obligations under the assigned Real Property Leases, Contracts and Other Agreements; provided that Buyer will not assume any shares of its capital stock liability resulting or arising out of any classdefault, breach, misfeasance, malfeasance or nonfeasance of Seller on or prior to the Closing Date under the assigned Real Property Leases, Contracts and Other Agreements; (iii) liabilities of Seller arising under the Stay Bonus Programs attached hereto as part of SCHEDULE 4.1 (a) (together, the "Stay Bonus Programs"), but only to the extent of Buyer's obligations to assume the obligations thereunder as set forth in SCHEDULE 4.1(a); and (viv) Liabilities liabilities relating to the ownership, possession, use or operation of the Assets or the Business arising after the Closing Date. (b) Nothing contained in this Section 4.1 or in any instrument of assumption executed by Buyer at Closing will release or relieve Selling Parties from their respective representations, warranties, covenants and agreements contained in this Agreement or in any exhibit, schedule, certificate, instrument, agreement or document executed in connection with this Agreement or relating the Closing, including without limitation the obligations of Seller and Guarantor to all actions, suits, claims, proceedings, demands, assessments indemnify Buyer in accordance with Article 11. (c) Except for those liabilities and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claimsobligations set forth in Section 4.1(a), includingBuyer will not assume any debt, without limitationliability or obligation of Seller, interestwhether known or unknown, penaltiesfixed or contingent and Seller will pay, reasonable attorney satisfy and accountant fees and perform all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be its obligations (other than those assumed by Buyer under this Agreement are hereinafter sometimes referred Section 4.1(a)), whether fixed, contingent, known or unknown and whether existing as of the Closing or arising after the Closing, which relate to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, the Business, the Seller's employees or the Assets or which may in any way affect the Assets or the Business. (d) Without limiting the generality of Section 4.1(c) and nothing of the provisos of Sections 4.1(a)(i) and 4.1(a)(ii), Buyer specifically does not assume the debts, liabilities and obligations set forth on SCHEDULE 4.1(d). (e) As used herein shall prevent any party from contesting in good faith with any third party any of said liabilities."Retained Liabilities" means the following:

Assumption of Liabilities. 1.3.1 Upon the sale terms and purchase subject to the conditions of this Agreement, the Purchaser agrees to assume and perform the following obligations and liabilities (the "Assumed Liabilities") of or relating to the Target Business from the Effective Date and thereafter: (a) all obligations of Aris relating to the Leased Property, the Automobile Leases and the automobiles identified as "Owned Cars" in Exhibit C; (b) subject to the provisions of Section 1.2 above, all obligations relating to any and all training courses to the extent not delivered in whole or in part as at the Effective Date; (c) all liabilities and/or obligations of Aris arising out of or in connection with any and/or all customer and/or supplier contracts of the Subject Target Business forming (in whole or in part) part of the Transferred Assets, Buyer shall assume including without limitation, any and agree all supplier contracts relating to pay or discharge when due in accordance with their respective terms mobile phones provided as a benefit by Aris to Assigned Employees; (d) all liabilities obligations of Seller shown or reflected on Aris to the Base Balance Sheet which are outstanding at Assigned Employees, including without limitation the time burden of the Closing, loyalty letters and change of control agreements sent to certain Assigned Management Employees in June 2000 a copy of which is attached herewith as Schedule 1.3(d); the burden of the stay bonuses in respect of such loyalty letters and change of control agreements not being more than three hundred and fifty thousand pounds sterling ((Pound Sterling) 350,000); (e) any and all debts, liabilities and obligations of or relating to the Target Business and/or the Transferred Assets assumed, incurred and/or otherwise relating to the period, after the Effective Date. 1.3.2 For the avoidance of doubt, and notwithstanding anything to the contrary contained in the Deed of Transfer, BV shall indemnify Aris and keep Aris at all times fully and effectively indemnified in respect of any and all losses, damages, claims, liabilities, demands, costs and/or expenses of any kind whatsoever suffered or incurred at any time by Seller since Aris arising out of or in connection with the date Loan to the extent that Aris is required to pay any amount(s) equal to all or any part or parts of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time Loan to Aris GmbH as a result of the Closing, provided, Loan being deemed equity of Aris GmbH in any insolvency and/or similar proceedings and/or circumstances); provided however, that Buyer BV shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with only be required to indemnify Aris under this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining Section 1.3.2 up to an amount equal to the performance by Seller total amount of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) the Loan for a period of Seller (whether relating to periods before or six months after the transactions contemplated Effective Date as the result of a cause of action which is brought in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out respect of any transferee liability; (iii) Liabilities insolvency and/or similar proceedings and/or circumstances under German law. For the avoidance of Seller to its dissenting Shareholdersdoubt, if any, under it is hereby agreed as between the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its parties that the Loan is an intra-company loan and is not a capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiescontribution.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) Buyer hereby assumes, and agrees to perform, and otherwise pay, satisfyand discharge all existing and future liabilities and obligations of Xxxxxxx, as set forth in the sale attached Schedule "A", including Xxxxxxx' proportionate share of those liabilities owed by the Company to NIR or entities associated with NIR (the "NIR Liabilities"). The liabilities set forth in Schedule A and purchase assumed by the Buyer (personally by its representative, Xxxxxx X. Xxxxx, as an additional investment in Xxxxxxx rather than by Xxxxxxx), other than the NIR Liabilities are referred to herein as the "Assumed Liabilities". Seller also agrees to assign any and all claims,causes of action, and affirmative defenses which it ever had, now has, or hereafter may have,whether currently known or unknown relating to the Subject AssetsAssumed Liabilities to Buyer'sRepresentative, Buyer shall assume Xxxxxx X. Xxxxx. (b) The Buyer's Representative, Xxxxxx X. Xxxxx, hereby assumes, and agree agrees toperform, and otherwise pay, satisfy and discharge all existing and future liabilities andobligations of Xxxxxxx (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to pay or discharge when due in accordance with their respective terms become due), including (a) all liabilities of the Seller shown for transfer, sales, use,and other non-income taxes arising in connection with the consummation of the transactions contemplated hereby, and (b) all liabilities and obligations of the Seller under the agreements, contracts, leases, licenses, and other arrangements referred to in the definition of Purchased Assets, including but not limited to any claims, debts, expenses, liabilities, and claims or reflected on legal fees whatsoever associated with or incurred as a result of such Assumed Liabilities (collectively the Base Balance Sheet which are outstanding at "Assumed Liability Expenses"), and that Xxxxxxx and Buyer will forever indemnify and hold harmless the time Company and against such Assumed Liabilities and any Assumed Liability Expenses following the Closing. (c) Effective as of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the ClosingCompany hereby agrees to assume, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant feesandagree to perform, and expenses pertaining otherwise pay, satisfy and discharge all existing and future liabilities andobligations relating to the performance by Seller of its obligations hereunder; (ii) Taxes (NIR Liabilities, attached hereto as defined in Section 2.08 hereof) of Seller Schedule "B" (whether relating known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinbecome due), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect but not limited to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedingsdebts, demands, assessments and judgments, costs, lossesexpenses, liabilities, damages, deficiencies and expenses claims or legal fees whatsoever associated with or incurred as a result of such NIR Liabilities (whether or not arising out of third-party claimscollectively the "NIR Liability Expenses"), including, without limitation, interest, penalties, reasonable attorney and accountant fees that the Company will forever indemnify and all amounts paid in investigation, defense or settlement of hold harmless Xxxxxxx and/or the Buyers against such NIR Liabilities and any of NIR Liability Expenses following the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesClosing.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On the sale terms and purchase of subject to the Subject Assetsconditions set forth herein, Buyer the Purchaser shall assume and agree satisfy or perform when due, the following liabilities and obligations of Sellers (the "ASSUMED LIABILITIES"): (a) the IRB Debt, if Purchaser, at its option, elects to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on assume the Base Balance Sheet which are outstanding at the time of the Closing, and IRB Debt; (b) all liabilities and obligations incurred by Seller since of Sellers to the date extent a reserve or accrual has been established on the books of the Base Balance Sheet Sellers as of the Closing Date and such reserve or accrual is reflected as a current liability on the Closing Statement; (c) all Accounts Payable and other current liabilities of Sellers reflected in the Closing Statement and incurred prior to Closing in the ordinary course of business and consistent business, together with the terms of this Agreement which are outstanding at the time all accounts payable of the Business incurred as of and after the Closing; (d) all Contracts of Sellers entered into in the ordinary course of the Business and described on SCHEDULE 2.1 (d); (e) all other contracts of Sellers entered into in the ordinary course of the Business, provided, however, that Buyer shall not assume and shall not pay the following liabilitiesincluding: (i) Liabilities incurred by Seller in connection with this Agreement all purchase orders, all customer contracts, all equipment contracts and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderall service contracts; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out all warranty obligations of the inclusion Sellers, subject, however, to the right of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability;Purchaser to reimbursement for such obligations pursuant to Section 9.4; and (iii) Liabilities the obligations represented by those certain stand-by letters of Seller credit and performance bonds described on Schedule 2.5, including the obligation to its dissenting Shareholdersobtain the release at Closing of Sellers' banks and bonding companies pursuant to said stand-by letters of credit and bonds. (f) all obligations of Sellers and Purchaser to offer benefits under Sections 601, if anyET. SEQ. of ERISA, or COBRA (as herein defined) pursuant to Section 5.8(c) with respect to participants and qualified beneficiaries who experience a COBRA qualifying event under the Massachusetts Business Corporation Lawany Sellers' Employee Benefit Plan; (ivg) Liabilities all obligations to pay the amounts required to be paid by Purchaser pursuant to Section 5.8 hereof; (h) all post-closing obligations of Seller Sellers under the Sellers' Employee Benefit Plans that Purchaser assumes at Closing, including: (i) duties with respect to any optionsplan administration after the Closing (including filing of forms 5500 for Plan year 1999 and thereafter in the post-closing period, warrantsperformance of discrimination testing, agreements or convertible or other rights to acquire any shares processing of its capital stock claims, etc.); (ii) payment of employer premiums due under welfare plans for periods after the Closing; and (iii) payment of any classrequired contributions to the 401(k) plan for periods after the Closing; and (vi) Liabilities in connection with those other liabilities or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, obligations of the Sellers included on SCHEDULE 2.5 (including the amount of such liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any but only to the extent of the foregoing. The amount of such liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesdescribed on such schedule.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On and subject to the sale terms and purchase conditions of the Subject Assetsthis Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all Buyer (or such wholly-owned subsidiaries of Buyer as the Buyer may identify prior to the Closing Date) shall expressly assume each of the following liabilities and obligations incurred by Seller since obligations, whether or not accrued, whether arising before, on or after the date Closing Date, regardless of when asserted (the Base Balance Sheet "Assumed Liabilities"), but not including Excluded Liabilities, in each case, to the ordinary course of business and consistent with extent relating to the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilitiesBusiness: (ia) Liabilities incurred by Seller all accounts payable to the extent set forth on the Closing Balance Sheet (as that term is defined in connection with this Agreement Section 1.6(c)(ii) below) (the "Accounts Payable"); (b) all current liabilities and expenses to the transactions provided for hereinextent set forth on the Closing Balance Sheet; (c) all obligations and liabilities of the Sellers under the agreements, contracts, leases, licenses, commitments, purchase orders and other similar arrangements (x) referenced on the Contracts Schedule, or (y) not referenced on the Contract Schedule due to the specific dollar thresholds contained in Section 5.12 below (including, without limitation, counsel the obligation to perform under such agreements, contracts, leases, licenses, commitments and accountant feesother similar arrangements), and expenses pertaining to the performance by Seller of its extent such obligations hereunderand liabilities are attributable to periods from and after the Closing Date or are reflected on the Closing Balance Sheet; (iid) Taxes all obligations and liabilities of the Sellers under the Leases (as that term is defined in Section 2.08 hereof5.9(b)) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interestthe obligation to perform under such Leases) to the extent such obligations and liabilities are attributable to periods from and after the Closing Date or are reflected on the Closing Balance Sheet; (e) all obligations and liabilities for refunds, penaltiesadvertising, reasonable attorney coupons, adjustments, allowances, repairs, exchanges, returns and accountant fees warranty, merchantability and other claims to the extent reflected on the Closing Balance Sheet; (f) all amounts liabilities arising under the debt obligations and leases set forth on Schedule 1.3(f) attached hereto to the extent not paid or prepaid at Closing (all liabilities described in investigation, defense this Section 1.3(f) that are not paid or settlement of any prepaid at the Closing hereinafter collectively called the "Assumed Indebtedness"); and (g) all other liabilities and obligations of the foregoing. The Sellers relating to the Business set forth on the Schedules attached hereto (as such schedules may be amended, with the consent of the Buyer, prior to the Closing Date) to the extent such obligations and liabilities are attributable to be assumed by Buyer under this Agreement periods from and after the Closing Date or are hereinafter sometimes referred to as reflected on the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesClosing Balance Sheet.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the terms and conditions of this Agreement, Buyer agrees to and shall assume as of Closing and shall thereafter perform when due, only the following liabilities (the “Assumed Liabilities” or the “Assumed Contracts”): (i) Seller’s obligations required to be performed after Closing under all unfilled Contracts and customer orders for the sale of Inventory entered into by Seller with respect to the Business in the Ordinary Course of Business (except Contracts and orders rejected by Buyer as not commercially reasonable as of the Closing Date), provided Buyer receives all proceeds therefrom; (ii) Seller’s obligations required to be performed after the Closing under all unfilled Contracts and purchase orders for the purchase of raw material Inventory entered into by Seller with respect to the Business in the Ordinary Course of Business (except Contracts and orders rejected by Buyer as not commercially reasonable as of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities Closing Date); (iii) those other Contracts of Seller shown or reflected identified on the Base Balance Sheet attached Schedule 2.2(a)(iii); and (iv) those other Contracts, agreements, leases and commitments directly relating exclusively to the Business that are cancelable by Seller upon thirty (30) days notice without premium or penalty and which are outstanding at involve a payment obligation over the time remaining term of such agreements as of the ClosingClosing Date of not more than One Thousand Dollars ($1,000) as to any single Contract agreement lease, or commitment and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet not more than Five Thousand Dollars ($5,000) in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, aggregate; provided, however, that Buyer shall not be required to and will not assume and shall not pay any other Contracts, agreements, leases or commitments that prohibit or in any way limit or restrict the following liabilities: (i) Liabilities incurred products that can be sold by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller restrict in any group filing consolidated, combined way the manner in which the Business is or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to may be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesconducted.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject AssetsClosing, Buyer shall assume and agree to pay or discharge when due pay, honor and discharge, in a timely manner in accordance with their respective the terms all thereof, only the following liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at Sellers (the time of "Assumed Liabilities"): (a) the Closing, and all liabilities and obligations incurred of any Seller arising after the Closing Date under the Assigned Contracts, the Assigned Real Property Leases and the Assigned Non-Property Leases; provided that Buyer shall not assume any liability or obligation that constitutes a breach of a representation or warranty contained herein or that is due to any breach or default by Seller since the date any Seller; (b) subject to Section 2.4(a), all Current Liabilities of the Base Balance Sheet Sellers incurred in the ordinary course of business to the extent related to the Purchased Divisions, Purchased Assets or the Affected Employees and consistent to the extent reflected on the Closing Balance Sheet (other than liabilities and obligations related to Taxes (except for accrued sales and use taxes and accrued real property taxes reflected on the Closing Balance Sheet, which are Assumed Liabilities), costs of the transactions contemplated by this Agreement, environmental claims, any liabilities relating to employees who are non-Affected Employees or severance expenses); (c) all liabilities and obligations arising under or in connection with the terms Pension Plan and the Retiree Health Plans; and (d) all liabilities and obligations arising under any Environmental Law relating to the Facilities located in Peoria, Illinois, including all such liabilities and obligations arising out of this Agreement which are outstanding or in connection with the use, storage, handling, treatment, processing, intra-Facility disposal, generation or intra-Facility transportation, Release and/or threatened Release of any Hazardous Materials at the time such location and/or migration of the Closingany Hazardous Materials to or from such location (collectively "On-Site Peoria Conditions"), provided, however, that Buyer shall not assume all liabilities and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining obligations arising under any Environmental Laws relating to the performance by Seller disposal, transportation, Release or threatened Release of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating any Hazardous Materials at any off-site location prior to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement Closing Date shall be the sole liability and the transactions provided for herein), including any liability for Taxes arising out responsibility of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesSellers.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of this Agreement, the Subject AssetsBuyer agrees, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding effective at the time of the Closing, to (or to cause its permitted assignees to) assume and pay, perform and discharge when due, only the following liabilities and obligations of the Seller (collectively, the “Assumed Liabilities”): (a) all liabilities and obligations incurred by Seller since under the date Assumed Chicago 2021 Contracts, including unfulfilled obligations in respect of the Base Balance Sheet in currently scheduled Wizard World Chicago 2021 Event represented by the ordinary course of business Pre-Closing Admission Ticket Sales Proceeds and consistent with the terms of this Agreement which are outstanding at Pre-Closing Floor Space Sales Proceeds, except that the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for hereinor pay, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its discharge or perform any liabilities or obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilitybreach by the Seller of any provision of any Assumed Contract; (iiib) Liabilities of Seller to its dissenting Shareholders, if any, all liabilities and obligations under the Massachusetts Business Corporation LawAssumed Legacy Ticket Contracts, except that (i) the Buyer shall not assume or pay, discharge or perform any obligations arising out of any of the Assumed Legacy Ticket Contracts with respect to deferred revenue liabilities for admissions tickets sold by the Seller in respect of editions of the Events that were cancelled or postponed due to the COVID-19 pandemic that exceed, in the aggregate, the amount set forth on Part 2.3(b) of the Disclosure Memorandum and (ii) Buyer shall not assume or pay, discharge or perform any liabilities or obligations arising out of any breach by the Seller of any provision of any Assumed Legacy Ticket Contract (other than to the extent that the cancellation or postponement of any edition of the Event is considered a breach of any such Assumed Legacy Ticket Contract); (ivc) Liabilities all liabilities and obligations under the Assumed Legacy Floor Space Contracts, except that (i) the Buyer shall not assume or pay, discharge or perform any obligations arising out of Seller any of the Assumed Legacy Floor Space Contracts with respect to deferred revenue liabilities for convention floor space sold by the Seller in respect of editions of the Events that were cancelled or postponed due to the COVID-19 pandemic that exceed, in the aggregate, the amount set forth in Part 2.3(c) of the Disclosure Memorandum and (ii) Buyer shall not assume or pay, discharge or perform any options, warrants, agreements liabilities or convertible or other rights to acquire any shares of its capital stock obligations arising out of any classbreach by the Seller of any provision of any Assumed Legacy Floor Space Contract (other than to the extent that the cancellation or postponement of any edition of the Event is considered a breach of any such Assumed Legacy Floor Space Contract); (d) all liabilities and obligations under the venue Contracts as set forth on Part 2.3(d)(1) of the Disclosure Memorandum (the “Assumed Legacy Venue Contracts”), except that (i) the Buyer shall not assume or pay, discharge or perform any obligations arising out of any of the Assumed Legacy Venue Contracts with respect to accounts payable liabilities that exceed, in the aggregate, the amount set forth in Part 2.3(d)(2) of the Disclosure Memorandum and (ii) Buyer shall not assume or pay, discharge or perform any liabilities or obligations arising out of any breach by the Seller of any provision of any Assumed Legacy Venue Contract (other than to the extent that the cancellation or postponement of any edition of the Event is considered a breach of any such Assumed Legacy Venue Contract); and (ve) Liabilities all employment related liabilities and obligations with respect to Event Employees in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any respect of the foregoing. The liabilities period beginning as of August 1, 2021 through and including the Closing Date, to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the extent and in the amount reflected on the Final Closing Statement (“Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesEvent Employees Stub Period Obligations”).” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On the sale terms and purchase subject to the conditions of this Agreement, the Subject AssetsPurchaser agrees, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time effective as of the Closing, to assume and to fully pay, discharge, satisfy and perform when due all liabilities and obligations incurred by Seller since Liabilities arising out of or relating to the date Business or the Acquired Assets, excluding, in each case all of the Base Balance Sheet in Excluded Liabilities, (such assumed liabilities, the ordinary course of business and consistent with “Assumed Liabilities”), including the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilitiesfollowing: (ia) All Liabilities incurred by Seller in connection with this Agreement and arising under the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderAssumed Contracts; (b) All Liabilities (i) as of the Closing Date for accrued, unpaid and unused vacation, sick leave, holiday entitlements and other entitlements for paid time off to the extent set forth on Section 3.18(c) of the Disclosure Schedule and (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or that arise after the transactions contemplated in this Agreement Closing Date, relate to employee benefits, compensation or incurred other arrangements for the benefit of Transferred Employees and do not arise or relate to any act or failure to act by a Seller in connection with this Agreement and Party on or prior to the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityClosing Date; (iiic) All Liabilities, whether based on breach of warranty or in negligence, strict liability, tort or otherwise, in respect of any and all products of the Business, and all Liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability and other claims in respect of Seller to its dissenting Shareholders, if any, under any and all products of the Massachusetts Business Corporation LawBusiness; (ivd) The Qualified Current Liabilities; (e) All Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classunder the Purchase Orders; and (vf) All Environmental Liabilities in connection with to the extent arising from any generation, transportation, disposition or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out release of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities Hazardous Materials by any party hereunder shall not enlarge Purchaser Party after the Closing; provided that notwithstanding anything to the contrary in this Agreement, no Non-Exacerbation Events shall, in and of themselves, be deemed to constitute generation, transportation, disposal or re-disposal, management, use or release of Hazardous Materials by any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilitiesPurchaser Party after the Closing.

Assumption of Liabilities. (a) Upon the sale terms and purchase subject to the conditions set forth in this Agreement, as of the Subject AssetsTransfer Date, Buyer shall assume the Acquiror agrees to assume, satisfy, perform, pay and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time each of the Closing, and all liabilities and obligations incurred by Seller since following Liabilities (the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:"ASSUMED LIABILITIES"): (i) all Liabilities incurred by of the Parent, the Seller or any of their Subsidiaries under the Assumed Contracts (in connection with this Agreement and the transactions provided for hereincase of an Assumed Contract requiring third party consent to assignment, includingwhere such consent has been obtained), without limitation, counsel and accountant fees, and expenses pertaining but only to the performance by Seller of its obligations hereunder;extent such Liabilities arise from and after the Transfer Date; and (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether all Liabilities with respect to the Gestiva Governmental Permits that are Purchased Assets to the extent relating to periods before the operation or conduct of the Gestiva Business by or on behalf of the Acquiror from and after the transactions contemplated Transfer Date, excluding the Gestiva NDA (subject to Section 8.5). ------------ (b) Notwithstanding anything contained in this Agreement or to the contrary, from and after the Closing Date and the Transfer Date, the Seller shall retain all of the following Liabilities ("EXCLUDED LIABILITIES"): (i) any Liability incurred by the Seller in connection accordance with this Agreement Section 8.5 in obtaining the Gestiva NDA Approval (subject to the ----------- reimbursement right set forth in Section 4.2(c)); -------------- (ii) all accounts payable and the transactions provided for herein), including any liability for Taxes arising out other similar Liabilities of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityand its Subsidiaries; (iii) Liabilities any Liability for (A) Taxes of Seller, (B) all other Taxes relating to the Gestiva Business or the Purchased Assets attributable to any Pre-Transfer Tax Period and (C) Taxes of any other Person for which Seller is liable pursuant to its dissenting Shareholdersany Agreement, if any, under the Massachusetts Business Corporation Lawby Law or otherwise ("EXCLUDED TAX LIABILITY"); (iv) all Liabilities of the Parent, the Seller and their Subsidiaries arising out of any product liability, intellectual property infringement, breach of warranty or similar claim for injury to person or property or any other claim related to the Purchased Assets or Gestiva arising prior to the Transfer Date (including all proceedings relating to any such Liabilities); (v) all Liabilities of the Parent, the Seller and their Subsidiaries arising out of government seizures, field corrections, withdrawals or recalls of Gestiva manufactured, transferred or sold prior to the Transfer Date, which are claimed prior to, on or after the Transfer Date; (vi) all Liabilities of the Parent, the Seller and their Subsidiaries with respect to any options, warrants, agreements or convertible litigation or other rights claims related to acquire Gestiva or the Purchased Assets to the extent arising from any shares event, circumstance or condition occurring or alleged to have occurred prior to the Transfer Date; (vii) any Liability of the Seller related to any product or service of the Seller or any of its capital stock Affiliates, other than Gestiva (subject to Section 3.1(a)); -------------- (viii) any Liability or obligation of the Parent, the Seller or any of their Subsidiaries (A) arising out of any classactual or alleged breach by the Parent, the Seller or any of their Subsidiaries of, or nonperformance by the Parent, the Seller or any of their Subsidiaries under, any Assumed Contract prior to the Transfer Date or (B) accruing under any Assumed Contract prior to the Transfer Date, including any accrued patent and other intellectual property license fees and liabilities; (ix) any Liability of the Seller to the extent arising out of (A) any suit, action or proceeding pending or, to the Knowledge of the Seller, threatened as of the Transfer Date, with respect to claims which arise from facts, events or circumstances occurring prior to the Transfer Date, or (B) any actual or alleged violation by the Seller or any of its Affiliates of any Law applicable to the Seller or any of its Affiliates; (x) any Liability of the Parent, the Seller or their Subsidiaries that relates to any Excluded Asset; (xi) any Liability of the Parent, the Seller or any of their Subsidiaries or ERISA Affiliates under or relating to (A) any employee benefit plan, or relating to wages, bonuses, payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, phantom stock, deferred compensation or other similar plan or arrangement, or any other employee plans or benefits of any kind, in each case, which the Parent, the Seller or any of their Subsidiaries or ERISA Affiliates has entered into, maintains or administers or has maintained or administered, to which the Parent, the Seller or any of their Subsidiaries or ERISA Affiliates contributes or has contributed or is or has been required to contribute, or under or with respect to which the Parent, the Seller or any of their ERISA Affiliates has or may have any Liability and (B) any actual or alleged violation by the Parent, the Seller or any of their Affiliates of any equal employment or employment discrimination laws; (xii) any Liability under Environmental Laws arising out of or relating to the operation or conduct of the business of the Parent, the Seller or their Subsidiaries or the use or ownership of the Purchased Assets, in each case, before the Transfer Date; (xiii) any Liability of the Seller to any of its Affiliates; and (vxiv) Liabilities in connection with any other Liability of Seller or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of its Subsidiaries or Affiliates that is not specifically listed as an Assumed Liability under Section 3.1(a) (including any Liability to the foregoing. The liabilities extent -------------- resulting from the ownership, use, operation or maintenance of the Purchased Assets by or on behalf of Seller prior to be assumed the Transfer Date, or the operation or conduct of the business of the Parent, the Seller or their Subsidiaries, by Buyer under this Agreement are hereinafter sometimes referred or on behalf of the Seller prior to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesTransfer Date).” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon At the sale Closing hereunder and purchase of the Subject Assetsexcept as otherwise specifically provided in this Section 1.4 or in Section 1.5 hereof, Buyer Purchaser shall assume and agree to pay pay, discharge or discharge when due perform, as appropriate, the following liabilities and obligations of the Business (the "Assumed Liabilities") and in furtherance thereof on the Closing Date the parties shall execute an Assumption Agreement in the form of Exhibit 1.4 attached hereto: (a) all liabilities and obligations of the Business for future performance in respect of the agreements, contracts, commitments and leases which are part of the Assets and which will be set forth and described with particularity in Section 4.18(a) of the Deferred Disclosure Exhibit (defined in Section 2.5), but only to the extent such liabilities are not retained by Seller pursuant to Section 1.5 of this Agreement. (b) all obligations, liabilities, costs and expenses related to claims asserted after Closing in accordance with their respective terms all liabilities express and implied warranties and guaranties set forth in the agreements or contracts which will be set forth on Section 4.18(a) of the Deferred Disclosure Exhibit, related to the Products, including, but as to implied warranties limited to, implied warranties of merchantability or fitness for a particular purpose (collectively the "Warranty Claims"), but only up to the amount reserved by the Seller shown or reflected on the Base Balance Sheet which are outstanding books of the Business at the time of the ClosingClosing to cover the Warranty Claims (the "Warranty Reserves") and excluding Catastrophic Failures. Such Warranty Claims, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be extent assumed by Buyer under this Agreement Purchaser pursuant hereto, are hereinafter sometimes referred to as the “Liabilities,” "Assumed Warranty Claims." For purposes of this Agreement, "Catastrophic Failures" means any situation where defects traceable to Seller's design or manufacturing process which occur during a period commencing one (1) year and ending three (3) years after the liabilities which are not assumed original sale of such Products by Buyer under this Agreement are hereinafter sometimes referred Seller cause significant performance-degrading defects in Products comprising (i) 8% or more against any one customer order or (ii) 8% or more (on an annualized basis) of the total aggregate of any one Product delivered to as the “Excluded Liabilitiesall customers.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon At the sale and purchase of the Subject AssetsClosing, Buyer shall assume assume, and agree to pay or thereafter pay, perform and discharge when due in accordance with their respective terms due, all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closingfollowing liabilities (the "ASSUMED LIABILITIES"), and which Assumed Liabilities are listed by category, including estimated amounts of such Assumed Liabilities on Schedule 1.3: (a) all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Sellers' accounts payable that both (i) arise in the ordinary course of business and consistent with (ii) in the terms case of this Agreement each Seller, arise after such Seller's respective Petition Date, each of which are outstanding at Allowed Administrative Expense Claims or reasonably expected to be Allowed Administrative Expense Claims (collectively, the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:"ACCOUNTS PAYABLE"); (ib) Liabilities incurred by Seller in connection with this Agreement all liabilities and obligations of Sellers first arising after the transactions provided for hereinClosing relating to the Acquired Contracts, including, without limitation, counsel all cure costs required to be paid pursuant to section 365 of the Bankruptcy Code in connection with the assumption and accountant feesassignment of the Acquired Contracts (such cure costs are, and expenses pertaining to collectively, the performance by Seller of its obligations hereunder"CURE COSTS"); (iic) Taxes (as defined in Section 2.08 hereof) all liabilities and obligations of Seller (whether Sellers relating to periods before the Acquired Assets and arising under any Environmental Law (but excluding, all liabilities and obligations of Sellers (i) for any environmental health or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), safety matter (including any liability or obligation arising under any Environmental Law) relating to any property or assets other than the Acquired Assets, (ii) resulting from the transport, disposal or treatment of any Hazardous Materials by Sellers on or prior to the Closing Date to or at any location other than the Real Property, (iii) relating to any personal injury of any Person resulting from exposure to Hazardous Materials or otherwise, where such exposure or other event or occurrence occurred on or prior to the Closing Date or as a consequence of any event or occurrence prior to the Closing Date, and (iv) for Taxes any fine or other monetary penalty arising out under any Environmental Law for acts or omissions of Sellers or otherwise relating to acts or omissions or conditions with respect to the Acquired Assets as of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityClosing Date); (iiid) Liabilities all liabilities and obligations of Seller to its dissenting Shareholders, if any, under Sellers as of the Massachusetts Business Corporation LawClosing Date for real and personal property Taxes that are set forth on Schedule 1.3(d); (ive) Liabilities all liabilities and obligations of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any Sellers as of the foregoing. The Closing Date for accrued but unpaid wages and salaries and related liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.described on Schedule 1.3

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer shall not assume, discharge or perform any liability other than the following Liabilities of Seller (collectively, the "ASSUMED LIABILITIES"), all of which Buyer will assume and agree to pay pay, discharge or discharge when due perform, as appropriate, from and after the Effective Time in accordance with their respective terms all the provisions of the Xxxx of Sale, Assignment and Assumption Agreement: (a) Liabilities arising under the contracts disclosed in Schedules 3.1(j)(i)-(ii), 3.1(k)(vi) and (vii), 3.1(m)(i), 3.1(m)(ii), 3.1(m)(vi), 3.1(m)(ix) - 3.1(m)(xi), 3.1(m)(xvi), 3.1(m)(xvi) - (xix) of the Seller Disclosure Schedule (the "ASSUMED CONTRACTS"), except to the extent, in respect of each contract so assumed, the representations of Seller contained in Sections 3.1(j), (k) and (m) in respect of each such contract so assumed are untrue in any material respect at the Closing; provided, that Buyer shall not assume, and does not hereby agree to pay, discharge or perform any damages relating in any manner to or arising from any breach or default of Seller or any of its Affiliates thereof occurring on or prior to the Closing Date; (b) Accounts payable and accrued liabilities of Seller shown or reflected consisting of (i) those liabilities at March 31, 2005 as set forth on Schedule 1.3(b) hereto, and (ii) liabilities incurred thereafter through the Base Balance Sheet which are outstanding at Closing Date, provided that all such liabilities (i) relate to the time Business, (ii) arise in the operation of the ClosingBusiness consistent with Seller's usual and customary practices in managing and operating the Business as they existed on March 31, 2005 and all liabilities and obligations incurred by Seller since (iii) are necessary to maintain the date ongoing operation of the Base Balance Sheet in Business without regard to the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, transactions contemplated hereby ("ORDINARY COURSE OF BUSINESS"); provided, however, that Buyer such assumed liabilities shall not assume include Excluded Liabilities and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its any obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classwhich would constitute Excess Transaction Liabilities; and (vc) Liabilities The litigation matter described in connection with or relating Schedule 3.1(o)(i) to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesSeller's Disclosure Schedule.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On the sale terms and purchase subject to the conditions contained in this Agreement and without derogating from any Liability of the Subject AssetsSellers resulting from any breach of or inaccuracy in the representations and warranties set forth in Article IV or in any other Transaction Document or any other matter indemnifiable by the Sellers pursuant to Article VII, at the Closing, Buyer shall assume and agree to pay or pay, perform, and discharge when due in accordance with all Liabilities of Sellers and their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining Affiliates to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before extent solely or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes primarily arising out of the inclusion operation of Seller the Business or the Acquired Assets after the Closing Date, in each case other than the Excluded Liabilities (the Liabilities so assumed being referred to in this Agreement, collectively, as the “Assumed Liabilities”). Without limiting the generality of the foregoing, the Assumed Liabilities shall include all of the following: (a) all Liabilities solely or primarily arising out of, in respect of or relating to (i) the Acquired Assets, including the use, ownership, possession, operation, sale or lease thereof after the Closing, or (ii) the Exploitation of the Products, by or on behalf of the Buyer or its Affiliates or their respective agents or assignees after the Closing (including any Product manufactured prior to the Closing and sold after Closing, but, for clarity, excluding any Liabilities in connection with any damages or adverse effects resulting from the use of Inventory that was defective as of Closing, including by virtue of latent defects existing as of Closing); (b) subject to Section 2.5 and Section 2.15, all Liabilities and obligations under the Assigned Contracts arising after the Closing, other than Accounts Payable; (c) without limiting the Parties’ obligations under the Transition Agreement, all Liabilities (i) for Rebates (as defined under the Transition Agreement) or (ii) arising out of or relating to any return (including any return based on breach of warranty) of, or refund, chargeback, GPO administration fee, adjustment, allowance or exchange of, or in respect of, any Product occurring, in each case, after Closing; (d) all Liabilities arising after Closing under or in respect of the Acquired Product Registrations or obtaining additional Permits or Regulatory Approvals for the Exploitation of any Product in any group filing consolidated, combined country or unitary tax returns territory; (e) all Liabilities to customers for Products that have not yet been delivered as of the Closing (other than Liabilities resulting from any breach by Sellers of an obligation under a Contract to deliver such Products prior to the Closing); (f) all Liabilities arising after the Closing relating to or arising out of any transferee liabilityclaims, causes of action, or Proceedings relating solely or primarily to the Business, the Products or the Acquired Assets; (iiig) all Liabilities of Seller to its dissenting Shareholdersarising after the Closing for obtaining, if anyregistering, under maintaining, prosecuting, and supporting the Massachusetts Business Corporation LawAcquired Intellectual Property; (ivh) all Liabilities arising after the Closing out of Seller with respect or relating to any options, warrants, agreements the recall or convertible or other rights to acquire any shares of its capital stock market withdrawal of any classProduct or post-sale warning in respect of any Product; and (vi) all Liabilities in connection with or arising after the Closing relating to all actionsany research, suitsclinical study, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether clinical trial or not arising out of thirdpost-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of marketing commitment regarding any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesProduct.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase As of the Subject Assets, Closing Date: (a) Buyer shall assume assume, on behalf of Imagyn and agree Sellers, Imagyn's and Sellers' obligation to pay make payments or discharge when due in accordance with their respective terms otherwise satisfy all liabilities accounts payable of Seller shown Imagyn and Sellers (net of intercompany payables) which relate to the Assets or reflected the operation of the Business prior to the Closing Date (the "Accounts Payable") and are set forth on a schedule of Accounts Payable delivered to Buyer on the Base Balance Sheet which are outstanding at Closing Date (the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, "Accounts Payable Schedule"); provided, however, that (i) Buyer shall only be obligated to assume responsibility for such Accounts Payable and the Vacation Pay liabilities described in Section 1.03(b) (the Accounts Payable and the Vacation Pay liabilities are collectively referred to herein as the "Assumed Liabilities") up to a total maximum of Two Million Three Hundred Thousand Dollars ($2,300,000) (the "Assumed Liabilities Cap"), and (ii) Buyer may, but shall not be obligated to, assume responsibility for Assumed Liabilities in excess of the Assumed Liabilities Cap, in which event the form of consideration payable to Imagyn and Sellers on the Closing Date shall be modified in the manners contemplated by Section 2.02(a) and Section 2.02(c). Imagyn and Sellers shall be jointly and severally liable for any and all Assumed Liabilities in excess of the Assumed Liabilities Cap, and Buyer may, in its sole discretion, either (x) pay such Assumed Liabilities and obtain reimbursement from either Imagyn and/or either Seller for such payments, or (y) turn over to either Imagyn and/or either Seller such Assumed Liabilities, which then shall become the obligations and responsibilities of Imagyn and each Seller. (b) Buyer shall assume, pay, perform or otherwise satisfy all liabilities for accrued vacation pay owing to Hired Employees (the "Vacation Pay"), subject to the limitations set forth in Section 1.03(b). (c) Buyer shall assume, pay, perform in accordance with their terms or otherwise satisfy Imagyn's and Sellers' executory obligations relating to the Assets or the operation of the Business under the leases, agreements, contracts, arrangements and licenses listed on Schedule 1.01(b) or Schedule 1.01(d) or described in Section 1.01(c) or Section 1.01(e), except that Buyer shall not assume and shall not pay have any responsibility for any termination fees that result from the following liabilities: (itransfer or attempted transfer of any international distribution agreements listed or referenced on Schedule 1.01(d) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining which consents to the performance by Seller assignment of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating such agreements to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or Buyer have not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesreceived.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On the sale terms and purchase of subject to the Subject Assetsconditions and limitations set forth in this Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time Closing, Purchaser (or its subsidiaries), or Essex as provided in Section 3.1(a)(ii), shall assume, effective as of the Closing, only the following liabilities (collectively, the “Assumed Liabilities”) and no others: (a) all Liabilities of Seller under the Assumed Executory Contracts that arise out of, relate to or accrue in the period from and after the Closing Date; (b) without duplication, all Liabilities of Seller that arise out of, relate to or accrue during the period from and after the Closing Date related to the Miscellaneous Secured Debt assumed by Purchaser in accordance with Section 2.9(d); (c) the Assumed Secured Debt (as set forth and defined in Section 3.1(a)); (d) the Liabilities of Seller under the Manitowoc Agreement; (e) the Liabilities under the Hedging Agreements-PNC that arise and become due and payable after the Closing Date, and, at the request of the First Lien Lenders received in writing prior to the Final Designation Deadline, the Liabilities under the Hedging Agreements-Other that arise and become due and payable after the Closing Date; (f) the trade payables of the Company for the amounts owed to the Manitowoc Crane Group relating to non-equipment related purchases (including, without limitation, parts and services), including any of the foregoing arising after the filing of the Bankruptcy Case, in an aggregate amount not to exceed Seven Hundred Fifty Thousand Dollars ($750,000). Seller covenants that such trade payables of the Company for the amounts owed to the Manitowoc Crane Group relating to non-equipment related purchases shall not exceed, at Closing, Seven Hundred Fifty Thousand Dollars ($750,000); (g) the trade payables of the Company for the amounts owed to the Manitowoc Crane Group relating to unsold cranes (and for the avoidance of doubt, without duplication of the amounts owed for non-equipment related purchases described above in Section 2.3(f)); (h) trade payables relating to operations of the Company (which specifically excludes all liabilities and obligations incurred by Seller since listed above in Sections 2.3(a)-(g)) owed to the date trade creditors (the “Trade Creditors”) listed on Schedule 2.3(h) hereto in an aggregate amount not to exceed One Million Seven Hundred Thousand Dollars ($1,700,000) (the “Aggregate Trade Payable Amount”). The amounts estimated to be paid to each of the Base Balance Sheet in Trade Creditors for obligations existing as of the ordinary course end of business on the Petition Date (the “Assumed Trade Payables”) are set forth on Schedule 2.3(h). As soon as practicable, Seller and consistent with Purchaser will mutually agree upon a revised Schedule 2.3(h) that reallocates payments to be made to the terms of this Agreement which are outstanding at Trade Creditors after taking into consideration (A) the time actual amounts owed to each of the Closing, Trade Creditors as of the end of business on the Petition Date and (B) the need to satisfy one hundred percent (100%) of the obligations assumed under Section 2.3(l); provided, however, that Buyer such reallocation will not result in Assumed Trade Payables plus amounts payable under Section 2.3(l) exceeding, in the aggregate, the Aggregate Trade Payable Amount. For the avoidance of doubt, dealings with trade creditors after the Effective Date shall not assume be conducted in accordance with the Budget and shall not pay the following liabilities:Section 8.2(a) herein; (i) Liabilities incurred Transfer Taxes, which Transfer Taxes shall be paid by Purchaser to Seller at Closing for remittance by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance appropriate taxing authority; (j) Cure Costs, which Cure Costs shall be paid by Purchaser to Seller on or after the Closing for payment by Seller of its obligations to the appropriate contracting party; (k) without duplication, all other Liabilities relating to amounts required to be paid by Purchaser hereunder; (iil) Taxes (as defined in all obligations of Seller that would constitute administrative expenses under Section 2.08 hereof503(b)(9) of Seller (whether relating to periods before or the Bankruptcy Code, which obligations shall be paid by Purchaser after Closing, provided that any amounts assumed and paid under this Section 2.3(l) shall reduce dollar for dollar for such creditor so paid, the transactions contemplated amount listed in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided Schedule 2.3(h) for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classsuch creditor; and (vm) Liabilities all obligations in connection respect of Unpaid Bonuses and Commissions and Unpaid Employee Compensation, which such amounts will be paid by Purchaser when due and payable in conformity with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out the normal course practices of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesSeller.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Buyer shall not assume any liabilities or obligations of Seller or ASA except for those liabilities and obligations which Buyer expressly assumes pursuant to this Section 1.1(c). Without limiting the sale foregoing, it is expressly agreed that Buyer shall not assume any liabilities for employment, income, sales, property or other taxes incurred or accrued by Seller. Seller and purchase ASA will indemnify and hold Buyer harmless in accordance with the provisions of Article VII from and against any and all losses, costs, expenses, claims, liabilities, deficiencies, judgments and damages incurred or suffered by Buyer or any of its affiliates related to or arising out of any liabilities or obligations of Seller or ASA, except for those liabilities or obligations expressly assumed by Buyer in this Section 1.1(c). At the Subject AssetsClosing, Buyer shall assume the following obligations and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on (collectively, the Base Balance Sheet which are outstanding at "ASSUMED LIABILITIES"): (i) All of Seller's implementation obligations pursuant to the time Implementation Agreements ("IMPLEMENTATION OBLIGATIONS") as of the ClosingClosing Date, provided that Seller identifies on SCHEDULE 1.1(C)(I) each such Implementation Obligation to Buyer and all provides to Buyer on SCHEDULE 1.1(C)(I) the following information for each such Implementation Obligation: (1) Customer name; (2) Commencement date and estimated completion dates of implementation project; (3) Method of fee calculation (time & materials or fixed price) and the agreed upon billing rates involved, where applicable; (4) Amount, if any, of cash deposits received from customer in advance of work performed; (5) Nature of any custom software development involved with the implementation, excluding normal configuration and integration to back-end accounting systems; and (6) Material problems, if any, known to Seller in connection with the implementation; (ii) All of Seller's maintenance obligations pursuant to the Maintenance Agreements ("MAINTENANCE OBLIGATIONS") as of the Closing Date, provided that Seller identifies each such Maintenance Obligation to Buyer on SCHEDULE 1.1(C)(II) and provides to Buyer on SCHEDULE 1.1(C)(II) the following information for each such Maintenance Obligation: (1) Customer name; (2) Maintenance period and related maintenance fee; and (3) Any Maintenance Obligations assumed by Seller that are out of the ordinary course of business. (iii) All of Seller's accounts payable, lease obligations, deferred revenue, customer deposits and accrued liabilities and obligations incurred by Seller since the date of the Base Balance Sheet SmartTime in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time as of the ClosingOption Date (collectively, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein"BALANCE SHEET LIABILITIES"), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law;; and (iv) Liabilities All of Seller's liabilities and obligations arising from and after the Option Date other than those pursuant to breaches by Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement ASA of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiestheir representations, warranties, covenants or other obligations hereunder.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of At the Closing, on and subject to the terms and conditions of this Agreement, OrthoLogic hereby agrees to assume and become responsible for all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer Assumed Liabilities. (a) The Assumed Liabilities shall not assume and shall not pay the following liabilitiesmean: (i) all liabilities, obligations and commitments of AzERx pursuant to or relating to the Assumed Contracts arising after the Closing Date; (ii) all liabilities, obligations and commitments of AzERx pursuant to or relating to the AzTE Agreement and the Washington University Agreement arising after the Closing Date; and (iii) the liabilities, if any, listed on Exhibit C. (b) Assumed Liabilities shall not include (by way of example and without limitation): (i) any Liabilities of AzERx not assumed as part of the Assumed Liabilities under Section 2.3(a) above; (ii) any Debt of AzERx not assumed as part of the Assumed Liabilities under Section 2.3(a) above; (iii) any Liability of AzERx for Taxes; (iv) any Liability of AzERx for income, transfer, sales, use, and other Taxes arising in connection with the consummation of the transactions contemplated hereby (including any income Taxes arising because AzERx is transferring the Acquired Assets); (v) any Liability of AzERx for the unpaid Taxes of any Person (other than AzERx) under Treas. Reg. §1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise; (vi) any obligation of AzERx to indemnify any Person by reason of the fact that such Person was a director, manager, officer, employee or agent of AzERx or was serving at the request of AzERx as a partner, manager, trustee, director, officer, employee or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise, and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement or otherwise); (vii) any Liability of AzERx for costs and expenses incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereundercontemplated hereby; (iiviii) Taxes any Liability or obligation of AzERx under this Agreement (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or under any other agreement between AzERx on the one hand and OrthoLogic on the other hand entered into on or after the transactions contemplated in date of this Agreement Agreement); or (ix) any Liability or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes obligation of AzERx arising out of the inclusion of Seller in any group filing consolidated, combined AzERx’s Employee Benefit Plans or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to severance agreements with its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesemployees.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, (a) The Buyer shall assume acquire the Assets free and agree to pay or discharge when due in accordance with their respective terms clear of all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent liens (with the terms exception of this UCC liens relating to the Company's Factoring Agreement which are outstanding at (the time of "Finova Agreement") with Finova Capital Corporation ("Finova") and the ClosingCompany's lease agreement with IBM Credit Corporation listed on Schedule 2.16 hereto), providedclaims, howevercharges, that Buyer shall encumbrances, liabilities, obligations and debts, known and unknown, whether absolute, contingent, accrued or otherwise, including, but not assume and shall not pay the following liabilitieslimited to: (i) Liabilities incurred by Seller in connection with this Agreement any and all obligations, commitments or liabilities of the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to Company or the performance by Seller of its obligations hereunderShareholder under the promissory note attached as Exhibit A hereto; (ii) Taxes any and all obligations, commitments or liabilities of the Company or the Shareholder pursuant to that certain Purchase and Sale Agreement (the "Stock Purchase Agreement") entered into as defined in Section 2.08 hereof) of Seller July 1, 1995 by and among Jack Xxxxxxxx xxx Beatxxxx Xxxxxxxx, xx trustees of the Duchxxxx Xxxily Trust of 1982 (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement "Duchownys"), the Company and the transactions provided for herein)Shareholder, including any liability for Taxes arising out including, but not limited to, the promise of the inclusion Shareholder thereunder to pay to the Duchownys the sum of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability$200,000 plus interest; (iii) Liabilities any and all obligations, commitments or liabilities of Seller or claims against the Company or the Shareholder to its dissenting Shareholdersor for any claims made by Pretty, if anySchrxxxxx & Xoplxxxxx, under the Massachusetts Business Corporation Lawxxr non-payment of professional fees or for costs and expenses, including attorneys fees, of defending any litigation brought for such non-payment of legal fees; (iv) Liabilities any and all obligations, commitments or liabilities of Seller with respect or claims against the Company or the Shareholder to or for any optionsclaims made by Grobstein & Company or their successors in interest for non-payment of professional fees or for costs and expenses, warrantsincluding attorneys fees, agreements of defending any litigation brought for such non-payment of legal fees; (v) any and all obligations, commitments or convertible liabilities of or other rights to acquire any shares claims against the Company or the Shareholder arising out of its capital stock or in connection with, the transfer and sale of the Assets hereunder, including, but not limited to, the payment of any classand all broker's fees; (vi) any and all liabilities for employment, transfer, sales or federal, state or local income taxes arising from the business or operations of the Company prior to the Closing Date or resulting from the sale and transfer of the Assets hereunder; (vii) any and all liabilities for any default in the performance of or breach of any contract, agreement, lease, commitment or obligation by the Company or the Shareholder prior to the Closing Date; (viii) any liability or obligation (whether absolute, contingent or otherwise) of the Company or the Shareholder arising out of any litigation that is pending or threatened as of the Closing Date, whether or not listed on Schedule 2.8; (ix) any liability or obligation arising out of defects in, or damages to persons or property arising out of defects in, products manufactured or sold by the Company on or prior to the Closing Date to the extent such liabilities or obligations exceed any reserves set forth on the books and records of the Company as of the Closing Date; (x) any other liabilities or obligations of the Company existing on the Closing Date which should have been accrued on the books and records of the Company in accordance with the accounting principles utilized in preparing such books and records but which were not so accrued; (xi) any liabilities or obligations (whether absolute, contingent or otherwise) relating to workers' compensation or severance claims made by any employee or former employee of the Company (whether filed or presented before or after the Closing Date) in connection with claims arising on or before the Closing Date to the extent such liabilities or obligations exceed the reserve for workers' compensation set forth on the books and records of the Company as of the Closing Date; (xii) any liabilities or obligations (whether absolute, contingent or otherwise) arising out of any violation of any Environmental Law (as hereinafter defined) by the Company (including fees and penalties for continuing violations) or arising out of the presence of Hazardous Materials (as hereinafter defined) at any of the Company's properties or facilities to the extent existing on or prior to the Closing Date, whether or not listed on any schedules hereto; and (vxiii) Liabilities in connection with any other liability or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any obligation of the foregoingCompany or the Shareholder whatsoever not expressly assumed by the Buyer pursuant to Section 1.3(b) below. (b) Notwithstanding anything to the contrary contained herein, the Buyer shall assume the Company's and the Shareholder's obligations: (i) under the promissory notes attached as Exhibits B and C hereto; (ii) for the accounts payable of the Company existing on the Closing Date and which are listed on Schedule 1.2(b) hereto, which Schedule 1.2(b) shall be provided by the Company to the Buyer at the close of business on the business day immediately preceding the Closing Date; and (iii) arising after the Closing Date under the contracts and agreements listed on Schedule 2.16 hereto. The liabilities to be Buyer agrees that, upon its assumption of the Company's obligations under the promissory notes attached as Exhibits B and C hereto, Buyer shall make monthly interest payments on such notes at the rate of interest stated therein, including any accrued and unpaid interest thereon. The obligations of the Company and the Shareholder which are being assumed by the Buyer under pursuant to this Agreement are hereinafter sometimes Section 1.2(b) shall be referred to herein as the “"Assumed Liabilities" or as an "Assumed Liability,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to " as the “Excluded Liabilitiescontext may require.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On and subject to the sale terms and purchase conditions of this Agreement, the Buyer agrees to assume and become responsible for all of the Subject Assets"Assumed Liabilities" (as hereinafter defined) at the Closing. The Buyer will not assume or have any responsibility, Buyer shall assume and agree however, with respect to pay any other obligation or discharge when due in accordance with their respective terms liability of the Seller not included within the definition of Assumed Liabilities. For purposes of this Agreement, "Assumed Liabilities" means (a) all liabilities of the Seller shown or reflected on attributable to the Base Balance Sheet Assets which are outstanding at may arise after the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Closing Date in the ordinary course of business (other than any liability resulting from, arising out of, relating to, in the nature of, or caused by any breach of contract, breach of warranty, tort, infringement, violation of law, or environmental matter, including without limitation those arising under environmental, health, and consistent with the terms of this Agreement which are outstanding at the time safety requirements); (b) all obligations of the ClosingSeller under the agreements, providedcontracts, howeverleases, that Buyer shall not assume licenses, and shall not pay other arrangements referred to in the following liabilities: definition of Assets either (i) to furnish goods, services, and other non-cash benefits to another party after the Closing Date or (ii) to pay for goods, services, and other non-cash benefits that another party will furnish to it after the Closing Date; and (c) all obligations of Seller with Southwestern Xxxx Telephone Co. for the Frame Relay circuit between Tahlequah and Tulsa and for the three (3) incoming digital T-1 trunk lines, prorated as of the Closing Date with the Seller remaining obligated for such obligations that are incurred before and as of the Closing Date and the Buyer assuming such obligations that are incurred after the Closing Date; PROVIDED, HOWEVER, that the Assumed Liabilities shall not include (i) any liability of the Seller for taxes, (ii) any obligation of the Seller to indemnify any person (including any of the Seller's stockholders) by reason of the fact that such person was a manager, officer, employee, or agent of the Seller or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any statute, articles of association, operating agreement, agreement, or otherwise), (iii) any liability of the Seller for costs and expenses incurred by Seller in connection with this Agreement and the transactions provided for hereincontemplated hereby, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements liability or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any obligation of the foregoing. The liabilities to be assumed by Buyer Seller under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAgreement.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject Purchased Assets, the Buyer shall assume and agree to pay assume, pay, perform or discharge when due in accordance with their respective terms those liabilities and obligations of the Sellers set forth below to the extent existing as of the Closing or subsequent thereto (the "ASSUMED LIABILITIES"). The Assumed Liabilities shall consist only of the following: (a) all the liabilities and obligations of Seller the Sellers shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and Closing other than the Retained Liabilities identified in Section 2.4 hereof; (b) all liabilities and obligations incurred by Seller the Sellers in the ordinary course of business since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the ClosingClosing and shown on the Closing Balance Sheet, provided, however, that Buyer shall not assume and shall not pay other than the following liabilities:Retained Liabilities; (ic) Liabilities incurred any liabilities and obligations reflected on the Base Balance Sheet or the Closing Balance Sheet to employees of the Sellers (including, without limitation, the Key Employees and any other employee of Sellers hired by Seller in connection with this Agreement and Buyer), for accrued pay, accrued vacation or obligations related to or resulting from severance of employment by the Sellers or the consummation by the Sellers of the transactions provided for hereincontemplated hereby, including, without limitation, counsel all immigration liabilities and accountant fees, and expenses pertaining responsibilities related to the performance H-1B employment of employees Osborne and Sane and attestations made on the original Form ETA-9035 ax xxxxxfied by Seller the Department of its obligations hereunderLabor and the liabilities that run from the Form I-9; (iid) Taxes all liabilities and obligations of Sellers to provide COBRA continuation coverage, in accordance with the requirements of Code Section 4980B and sections 601 through 608 of ERISA, to all Qualified Beneficiaries (as defined in within the meaning of Code Section 2.08 hereof4980(g)(1) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinTreasury Regulation 54.4980B-9), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iiie) Liabilities any liabilities and obligations of Seller the Sellers with respect to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Lawproduct warranty and product liability claims; (ivf) Liabilities of Seller with respect any liability relating to any optionsgovernment grants, warrants, agreements or convertible subsidies or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), assistance including, without limitation, interestany liability for reimbursement to a government for any research and development grants, penalties, reasonable attorney and accountant fees and all amounts subsidies or assistance previously paid in investigation, defense by the government relating to or settlement of any arising out of the foregoing. The Sellers' business; (g) all the liabilities and obligations arising out of (i) the kSARIA Proceeding and (ii) any Proceedings, whether commenced or threatened prior to or after the Closing Date and with or without the knowledge of the Sellers, or any Court Orders whether outstanding prior to or after the Closing Date, arising out of or relating to the kSARIA Proceeding; (h) all liabilities and obligations arising after the Closing Date under the Acquired Contracts; and (i) up to $500,000 of Sellers' legal, accounting, investment banking and other expenses to be assumed paid by Buyer under this Agreement are hereinafter sometimes referred pursuant to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” Section 12.2 hereof. The assumption of said liabilities Assumed Liabilities by any party the Buyer hereunder shall be treated as independent of the Buyer's existing business and shall not enlarge any rights of third parties under contracts or arrangements with the Buyer or Seller, and nothing the Sellers. Nothing herein shall prevent any party the Buyer from contesting in good faith with any third party any of said liabilitiesthe Assumed Liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of (a) At the Closing, Purchaser and/or one or more of its Affiliates or Subsidiaries shall assume, and shall be solely and exclusively liable only for (i) those obligations of Seller under the contracts, agreements, leases, licenses, permits, applications, unfilled sales and purchase orders, invoices and other commitments assigned to Purchaser pursuant to Sections 2.1(b) and (c) (collectively, the "Seller Agreements") that arise, and relate to a period, on or after the Closing Date, including all liabilities unperformed and unfulfilled obligations expressly identified in such Seller Agreements incurred on or after the Closing Date in respect of services rendered or goods sold to or by Seller since on or after the Closing Date which are required to be performed and fulfilled under the Seller Agreements; and (ii) those liabilities set forth on Schedule 2.3 (which such schedule may be subsequently updated by mutual agreement of Purchaser and Seller within 5 Business Days of the date of this Agreement) (collectively, the Base Balance Sheet "Assumed Liabilities"). (b) Nothing contained in this Agreement shall require Purchaser or any of its Affiliates to pay, perform or discharge any Assumed Liability so long as it shall in good faith and by appropriate and legal means contest or cause to be contested the ordinary course of business amount or validity thereof and consistent shall have indemnified and have held harmless Seller and its Affiliates with respect thereto pursuant to the terms of this Agreement which are outstanding Agreement. (c) Nothing contained in this Section 2.3 or in any instrument of assumption executed by Purchaser at the time of the ClosingClosing shall release or relieve Seller from its representations, providedwarranties, however, that Buyer shall not assume covenants and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated agreements contained in this Agreement or incurred by Seller any certificate, schedule, instrument, agreement or document executed pursuant hereto or in connection herewith, including, the obligations of Seller to indemnify Purchaser in accordance with the provisions of Article X hereto. (d) Notwithstanding the foregoing, Purchaser and its Affiliates shall not, and nothing in this Agreement and the transactions provided shall require Purchaser and/or its Affiliates to, assume or be liable or otherwise be responsible for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to or its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller Subsidiaries with respect to any optionsPlan (including, warrantsbut not limited to, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claimsTitle IV Plan), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense except as may be required by law or settlement of pursuant to any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesSeller Agreement.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale Buyer’s rights of indemnification by Sellers under this Agreement and purchase the Transfer Agreements with respect to the pre-Closing operations of the Subject Business, Buyers will assume, and will thereafter pay, perform and discharge as and when due, and will be liable with respect to only the following Liabilities of Sellers, no matter how arising (collectively, the “Assumed Liabilities”). 2.2.1 All Liabilities of Sellers arising on or after the Closing Date, under any Contracts, licenses, permits, leases and other agreements included in the Acquired Assets and assigned or otherwise transferred to Buyers or any relevant Buyer Affiliate pursuant to the terms of this Agreement, the Patent Assignment, the Trademark Assignment or the Transfer Agreements, and other obligations relating to any Buyer’s ownership or use of the Acquired Assets on or after the Closing Date; 2.2.2 All Liabilities relating to the Acquired Assets and arising on or after the Closing Date, including Claims and other obligations, in each case to the extent relating to any Buyer’s ownership or use of the Acquired Assets; 2.2.3 All Product Warranty Claims with respect to Products manufactured on, before or after the Closing Date, except that with respect to Products manufactured before the Closing Date by Sellers or any of their predecessors, Buyer shall only assume liability for Product Warranty Claims made following expiration of the applicable Warranty Period; 2.2.4 All Product Recall Claims with respect to Products manufactured on, before or after the Closing Date, except that with respect to Products manufactured before the Closing Date by Sellers or any of their predecessors, Buyer shall only assume liability for Product Recall Claims made following expiration of the applicable Warranty Period; 2.2.5 All Claims relating to infringement of Intellectual Property and/or Product Liability Claims, in each case relating to Products manufactured on or after the Closing Date; 2.2.6 Any and agree all Environmental Claims, Losses or Liabilities relating to: (i) the existence of or a Release of Hazardous Materials at, on, in or under the Environment at any Real Property used by the Business arising on or after Closing (except that regarding MSA Manufacturing Facilities, Buyer will be responsible only to the extent such Losses or Liabilities are caused by changes to the manufacturing process effected by Buyer despite written objection from Seller, or by the acts of a Buyer employee located at such MSA Manufacturing Facility); or (ii) compliance with or failure to comply with any Environmental Laws or any Environmental Permit, whether in effect prior to or after the Closing Date, related to the operation of the Business arising on or after the Closing Date in respect of the Acquired Assets; 2.2.7 All deferred revenue obligations set forth on Schedule 2.2.7, including all obligations to fulfill orders relating to Products of the Business outstanding on the Closing Date; 2.2.8 Any and all Tax Claims, to the extent that they arise out of or relate to the period after the Closing Date; 2.2.9 Liabilities with respect to Global Sale Employees which are not retained by Seller pursuant to Section 2.3.6, including, but not limited to: (i) obligations to Global Sale Employees arising from such employee’s past service with any Seller prior to the Closing Date consistent with the employee information provided in the schedules included under Section 4.10, and the Purchase Price adjustments of Section 3.3.2 (the “Past Service Financial Obligations”); and (ii) as set forth in Sections 6.6, 6.7, 6.8 and 6.9; 2.2.10 All Liabilities that any Buyer assumes or agrees to pay for or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with to be responsible for pursuant to the terms of this Agreement which are outstanding at or any Ancillary Agreement or as required by Law due to the time transfer of the Closing, provided, however, that Buyer shall not assume and shall not pay Business to Buyer; 2.2.11 All of Delphi’s obligations under the following liabilities: (i) Liabilities incurred by Seller JAVE cost saving program made in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining awards of business prior to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classClosing Date; and (v) 2.2.12 Liabilities for Taxes related to the debonding or other change in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any customs status of the foregoing. The liabilities Acquired Assets resulting from the Buyer not establishing the required legal entities and obtaining the necessary authorizations from the relevant Governmental Authority to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as receive the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAcquired Assets in their customs status.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon 5.1 Buyer hereby agrees to assume, to the sale extent the same remain unpaid on the date hereof, the following liabilities of Seller; (a) All accounts payable, accrued commissions and purchase royalties, other accrued liabilities (excluding accrued interest on the Anton Debt and the current portion of long-term debt) and (X) the aggregate principal amount of Seller's line of credit at Summit Bank as of December 31, 1996 (collectively "Current Liabilities"). (b) all accrued interest, current and long-term debt, excluding Anton Debt, on the December Balance Sheet as detailed in Schedule 5.1(b) attached hereto, however, Buyer will not assume the Summit Bank loan related to the Excluded Inventory; (c) all Anton Debt, as detailed in Schedule 5.1(c) attached hereto, which debt shall be simultaneously converted into Series A Convertible Preferred Stock ("Preferred Stock") of the Subject Assets, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all the Debt Conversion and Registration Right Agreement provided at Exhibit D attached hereto; (d) liabilities or obligations of Seller shown pertaining to the Transferred Assets or reflected on the Base Balance Sheet which are outstanding at the time operation of the ClosingBusiness which arise under the terms of a contract, agreement, license, lease or other commitment (i) which is disclosed in the schedules to this agreement, and all liabilities and obligations incurred (ii) which was entered into by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with of Seller; provided that, in the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out case of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholderscontract, if anyagreement, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any optionslicense, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities commitment to be assumed by Buyer under this Agreement hereunder, except as otherwise expressly agreed to herein, only to the extent such liabilities arise out of and relate solely to the period after the Closing Date and which by the terms thereof are hereinafter sometimes referred to be observed, paid, discharged or performed, as the “Liabilities,” case may be, at any time on and after the liabilities which are Closing Date; and (e) those obligations with respect to employees detailed in Article XIV hereof. 5.2 Buyer does not assume any long term debt beyond the amount set forth in the December Balance Sheet. 5.3 Seller hereby agrees and acknowledges that Buyer will assume no liabilities, obligations or commitments of Seller other than those specifically assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesin Section 5.1, above.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) Subject to the sale terms and purchase conditions of this Agreement, Purchaser hereby agrees to (i) assume and pay, perform and discharge as and when due the Closing Liabilities of Seller reflected on the Closing Statement (as each term is defined in Section 1.4(b)), (ii) assume the debt equal to $1,185,000 owed by Seller to Dan Xxxxxxxxx (xxe "Shareholder Debt") and within two days of the Subject AssetsClosing to pay, Buyer shall perform and discharge the Shareholder Debt, and (iii) assume and agree to pay or perform and discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since under the date Contracts listed on Schedule 2.19 of the Base Balance Sheet in Seller Disclosure Schedule that are to be performed on or after the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes Closing Date (as defined in Section 2.08 hereof1.5) (the "Assumed Liabilities"). (b) Except for the Assumed Liabilities and as may be expressly provided for in this Agreement, Purchaser shall not assume and Seller shall not assign to Purchaser and Seller shall remain liable for any liability, obligation, guaranty, indebtedness, claim, loss, cost, expense or responsibility, direct or indirect, absolute or contingent, of Seller including without limitation (whether relating to periods before or after the transactions contemplated in this Agreement or incurred i) any amount of principal and interest owed by Seller in connection to Dan Xxxxxxxxx xxxeeding $1,185,000, (ii) taxes with this Agreement and respect to or attributable to the transactions provided Assets for herein)all taxable periods through the Closing Date, including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholdersany liabilities associated with the Excluded Assets, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities any expenses and costs arising from this transaction, and (iv) any other liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be specifically assumed by Buyer under this Agreement are hereinafter sometimes referred to as Purchaser (the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “"Excluded Liabilities").” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon Subject to the sale terms and purchase of conditions set forth herein, from and after the Subject AssetsClosing, Buyer Purchaser shall assume and agree to satisfy, perform, pay or and discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on solely the Base Balance Sheet which are outstanding at the time of the Closing, and all following liabilities and obligations incurred by of Seller since (paragraphs (a), (b), (c) and (d) below, collectively, the date “Assumed Liabilities”): (a) liabilities and obligations of the Base Balance Sheet Seller under Included Contracts included in the ordinary course of business and consistent with Assets that, by the terms of this Agreement which are outstanding at such Included Contracts, arise after the time Closing (other than by virtue of a default or violation of any Included Contract occurring prior to the Closing), providedrelate to periods following the Closing and are to be observed, howeverpaid, that Buyer shall not assume and shall not pay discharged, or performed as the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and case may be, at any time after the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderClosing; (iib) Taxes (Seller’s obligations to its customers under its standard Warranty Policy, as defined described in Section 2.08 hereof2.3(b) of Seller the Disclosure Schedule (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii“Warranty Obligations”) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any optionsproducts sold prior to (or after) the Closing and relating to Assets or the Divisions; (c) accounts payable, warrantscustomer deposits and accrued expenses of each of the Divisions as of the Closing Date, agreements or convertible or other rights in each case as identified on Section 2.3(c) of the Disclosure Schedule (the “Payables Schedule”), provided that the Seller shall update the Payables Schedule within thirty (30) days after the Closing to acquire reflect any shares additions to accounts payable, customer deposits and accrued expenses as of its capital stock of any classthe Closing Date; and provided, further that Purchaser shall not assume accounts payable which have been outstanding and are past due for longer than sixty (60) days prior to the Closing Date; and (vd) Liabilities liabilities and obligations expressly assumed by Purchaser pursuant to Article IX. (e) Within thirty (30) days after the Closing Date, Seller shall prepare and deliver to Purchaser a schedule identifying the accounts receivable acquired by the Purchaser pursuant to this Agreement, and the accounts payable and the purchases which will result in connection with or accounts payable (“Purchases Clearing”) assumed by the Purchaser pursuant to this Agreement (the “Payables Adjustment Schedule”). The Payables Adjustment Schedule will include a determination of the amount by which such accounts receivable exceeds such accounts payable and Purchases Clearing (the “Closing Date Net Receivables”). If the Closing Date Net Receivables is less than $250,000, Seller shall retain such accounts payable relating to all actions, suits, claims, proceedings, demands, assessments the Divisions and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether the Assets so that the Closing Date Net Receivables equals or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any exceeds $250,000. For purposes of the foregoing. The liabilities Payables Adjustment Schedule, accounts receivable excludes prepaid expenses relating to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” Assets and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred Divisions and accounts payable and Purchases Clearing excludes unpaid commissions, accrued expenses and customer deposits relating to as the “Excluded LiabilitiesAssets and the Divisions.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) At the sale Closing, NDI shall with respect to DGD's accounts receivable and purchase inventory financing agreement (the "Bank Debt"), and without cost to DGD, either (i) execute such documents as may be necessary to assume the Bank Debt, with the consent of DGD's lender, or (ii) cause payment in full of such Bank Debt to be effected. (b) At the Subject AssetsClosing, Buyer NDI shall execute and deliver an Assignment and Assumption Agreement (the "Assignment and Assumption Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which it shall assume and agree to (i) perform, pay or and discharge when due (x) all those trade accounts payable and (y) all those accrued expenses and withholdings (I) reflected in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Closing Balance Sheet as "Current Liabilities", except to the extent performed, paid or discharged prior to the Closing Date, or (II) which are outstanding at on the time of the Closing, Closing Date and all liabilities and obligations which were incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent or with the express written consent of the Chief Financial Officer of NDI (the "Assumed Current Liabilities"), (ii) perform and discharge in accordance with their terms those (A) obligations outstanding on the Closing Date under the Contract Rights including but not limited to the Collective Agreement (as defined in Section 3.01(b)) with Union Local 815 and each of the leases set forth on Schedule 4.01(q) hereof and (B) issued, outstanding but uncleared checks of DGD (the "Checks") to the extent the Checks are classified and reflected as trade accounts payable on the Closing Balance Sheet and would perform, pay or discharge any other Assumed Liability (as defined below), (iii) perform, discharge and pay in accordance with their terms those liabilities directly arising after the Closing Date from any agreement, commitment, purchase, order, contract, license, lease, right or other contract document which NDI has requested be transferred to it pursuant to Section 1.01(a) hereof but which has not been so transferred due to the failure of DGD to obtain the consent or approval required for transfer, provided that NDI has requested and received the same economic benefit of such contract pursuant to Section 1.02(b) hereof and such liability shall not have arisen as a result of DGD's actions or inactions, (iv) perform, pay and discharge any other liabilities of DGD included in the Closing Balance Sheet other than any such liabilities which are specifically excluded herein and (v) perform, pay and discharge any liability of DGD incurred with the express written consent of the Chief Financial Officer of NDI since the Balance Sheet Date (the obligations set forth in this Section 1.03(b) (i), (ii), (iii), (iv) and (v) along with NDI's obligations under Section 1.03(a) regarding the Bank Debt are, collectively, the "Assumed Liabilities"). (c) Except as otherwise provided herein, Xxxxxx and NDI shall not assume any of the liabilities of DGD and shall purchase the Assets free and clear of all liens, mortgages security interests, encumbrances and claims and DGD represents, warrants and agrees that neither Xxxxxx nor NDI shall be or become liable for claims, demands, liabilities or obligations not expressly assumed in this Agreement which are outstanding of any kind whatsoever arising out of or relating to the conduct of the Business by DGD or the Assets or Assumed Liabilities prior to the Closing Date. Without limiting the foregoing, at the time of the Closing, providedother than the Assumed Liabilities, however, that Buyer NDI shall not assume or agree to perform, pay or discharge, and DGD shall remain unconditionally liable for, all obligations, liabilities and commitments, fixed or contingent, of DGD (the "Excluded Liabilities"), including but not pay the following liabilitieslimited to: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining respect to all periods prior to the performance Closing Date, except as specifically set forth in Section III hereof, severance, termination or other payments or benefits (including but not limited to post-retirement benefits which include but are not limited to those owing under DGD's severance policy), any union contract or any employment agreement to any employees (union or non-union), sales agents or independent contractors employed by Seller of its obligations hereunderDGD prior to the Closing Date, liabilities arising under any federal, state or local "plant closing law", liabilities accruing under DGD's employee benefit plans, vacation pay plans or programs, retirement plans, pension plans or savings or profit sharing plans heretofore or presently maintained by DGD; (ii) Taxes worker's compensation claims; (iii) stock option or other stock-based awards made to employees of DGD or any subsidiary of DGD, if any; (iv) liabilities for any federal, state or local income, gross receipts, license, payroll, excise, withholding, transfer, registration, value added, alternative, add-on minimum, sales and/or compensating use tax taxes (including interest, penalties and additions to such taxes) or any deferred income taxes of DGD; (v) liabilities incurred in connection with violations of occupational safety, wage, health, welfare, employee benefit or Environmental Laws or regulations, which violation did not result from the action or inaction of NDI subsequent to the Closing Date including, but not limited to, any claim arising from the violation of any law, regulation or ordinance relating to environmental matters or disposal of hazardous substances and liabilities relating to the remediation of environmental conditions; (vi) liabilities to the extent related solely to the Excluded Assets; (vii) any tax (including but not limited to any federal, state or local income, franchise, single business, value added, excise, customs, intangible, transfer, recording, documentary or other tax) imposed upon, or incurred by, DGD, if any, in connection with or related to this Agreement or the transactions contemplated hereby; (viii) other than the Assumed Liabilities, any liabilities of DGD to third parties arising out of the failure of DGD to obtain any necessary consents to the assignment to NDI of contracts or leases to which DGD is a party (including damages asserted by third parties for breach of such contracts or leases due to the failure to obtain such consents); (ix) except to the extent reserved for on the Closing Balance Sheet, liabilities which are undisclosed or contingent; (x) liabilities, other than the Assumed Liabilities, to creditors of DGD; (xi) liabilities for any state franchise taxes or annual license or other fees relating to qualification as a foreign corporation or authorization to do business in such states (including interest, penalties and additions to such taxes and fees); (xii) liabilities resulting from any investigations or inquiries by governmental authorities relating to the Business; (xiii) liabilities with respect to the operation of the Business prior to the Closing Date that may be incurred by DGD as penalties, fines, charges or assessments by the DEA; (xiv) liabilities or obligations in respect of preferred shares of capital stock of DGD or the holders thereof; (xv) liabilities (including without limitation any liabilities under the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C xx.xx. 9601 et seq.) arising out of or incurred in connection with (i) those items set forth on Schedule 4.01(n) and (ii) any Hazardous Material (as defined in Section 2.08 hereof4.01(n) hereunder) located in, on, under, or originating from the Real Estate, equipment of Seller (any type thereon and/or leasehold improvements prior to the Closing Date, whether relating to periods before the existence of such Hazardous Material is currently known or after the transactions contemplated in this Agreement unknown, as well as any liabilities arising out of or incurred by Seller in connection with this Agreement and any Environmental Law (as defined in Section 4.01(n) hereunder) relating in any way to the transactions provided for herein), including any liability for Taxes arising out conduct of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityBusiness prior to the Closing Date; (iiixvi) Liabilities liabilities or obligations in respect of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation LawDGD's relationship with Meadow Trucking Inc. ("Meadow"); (ivxvii) Liabilities of Seller with respect liabilities or obligations relating to any options, warrants, agreements or convertible or other rights to acquire any shares brokerage fees payable by DGD upon the consummation of its capital stock of any classthe transaction contemplated hereby; and (vxviii) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement any other liabilities of any of the foregoing. The liabilities to be kind or nature whether now in existence or arising hereafter not expressly assumed by Buyer NDI under this Agreement are hereinafter sometimes referred to as the “Liabilities,” Section 1.03(a) and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities(b) hereof.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. (a) Upon and subject to the sale terms and purchase conditions of this Agreement (including but not limited to the Sellers' satisfaction of its assumption and assignment obligations with respect to the Assigned Contracts and Leases pursuant to Section 4.4(c) and the condition set forth in Section 5.1(b)), the Buyer shall assume and become responsible for, from and after the Closing (collectively, the "Assumed Liabilities"): (i) all obligations of the Subject AssetsSellers arising from and after the Closing under the Assigned Contracts and Leases; provided, however, that with respect to the liability of Buyer for warranties on parts and labor, Buyer shall assume and agree the unexpired portion of such liability on goods sold prior to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which Closing Date by Sellers to customers who are outstanding at the time continuing customers of the ClosingBuyer (the "Assumed Warranty Obligations"); (ii) all accepted orders from customers of the Sellers (excluding orders relating to the Belgian Entities, the Mexican Entities, Cisco, Nokia or ATT) and all liabilities and obligations incurred by Seller since the date purchase orders of the Base Balance Sheet Sellers (excluding orders relating to the Belgian Entities, the Mexican Entities, Cisco, Nokia and ATT) issued in the ordinary course of business and consistent with business; (iii) the terms of this Agreement which are outstanding at the time customer accounts payable of the Closing, provided, however, Sellers (other than to any affiliates thereof) solely relating to customers that will be continuing customers of the Buyer shall not assume and shall not pay (the following liabilities:"Assumed Payables"); (iiv) Liabilities incurred by Seller in connection with this Agreement liabilities arising after the Closing out of the ownership and operation of the transactions provided for hereinAcquired Assets after the Closing, including, without limitation, counsel liability for personal injury of customers or employees; (v) liabilities related to the termination of employment after the Closing of any Continuing Employee, including, but not limited to any liability arising under the WARN Act; (vi) liabilities related to earned but unpaid salary, payroll and accountant feesrelated taxes and accrued but unpaid vacation and sick days (collectively, the "Accrued Employee Liabilities"), of active employees of the Sellers employed by the Buyer ("Continuing Employees") and, whether or not accrued, any obligations under Section 4980B of the Internal Revenue Code to provide continuation of group medical coverage with respect to any Continuing Employee or other qualified beneficiary of any such Continuing Employee that occur after the Closing; (vii) the liabilities and obligations to make certain specified payments in respect of the Retention Plan, the MCMS Plan and the Executive Employment Agreements up to the maximum aggregate amount of $3,700,000, subject to the terms of Section 1.4(c)(ii) and Section 1.8 hereof (the Assumed Liabilities described in clauses (v) through this clause (vii) collectively, the "Assumed Employee Liabilities"); (viii) all liabilities and obligations relating to the Continuing Employees arising after the Closing Date as set forth in the Buyer's Plans; and (ix) all liabilities and obligations for taxes that the Buyer is liable for pursuant to Section 6.6(b). (b) The Buyer shall not assume or otherwise become responsible for, and expenses pertaining the Sellers shall remain liable for, any and all liabilities or obligations (including but not limited to "claims" as defined under ss.101(5) of the Bankruptcy Code) of the Sellers which are not Assumed Liabilities (whether known or unknown, whether absolute or contingent, whether liquidated or unliquidated, whether due or to become due, and whether claims with respect thereto are asserted before or after the Closing) (collectively, the "Retained Liabilities"). The Sellers agree that the Retained Liabilities shall constitute claims and alleged claims in the Sellers' Bankruptcy Cases; provided, however, that nothing herein shall grant or create any rights in favor of the holders of Retained Liabilities or create any priority to right of payment. It is expressly understood and agreed that the Parties intend that the Buyer shall not be considered to be a successor to the performance Sellers by Seller reason of any theory of law or equity and that the Buyer shall have no liability except as expressly provided in this Agreement for any liability of the Sellers. The Retained Liabilities shall include, without limitation, the following (for purposes of the following clauses, the term "Sellers" shall include the Sellers and each of its direct and indirect subsidiaries): (i) all liabilities and obligations hereunderof the Sellers for any federal, state, foreign local or other taxes other than any liabilities and obligations for taxes that the Buyer is liable for pursuant to Section 6.6(b); (ii) Taxes (as defined in Section 2.08 hereof) all liabilities and obligations of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or Sellers for costs and expenses incurred by Seller the Sellers in connection with this Agreement and or the consummation of the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilitycontemplated by this Agreement; (iii) Liabilities all liabilities and obligations of Seller to its dissenting Shareholdersthe Sellers under this Agreement or the Ancillary Agreements, if any, or under the Massachusetts Business Corporation LawPrior Agreement; (iv) Liabilities all liabilities and obligations of Seller with respect to the Sellers under any optionsagreements, warrantscontracts, agreements leases or convertible or other rights to acquire any shares of its capital stock of any class; andlicenses which are not Assumed Liabilities; (v) Liabilities in connection with or all liabilities and obligations of the Sellers relating to all actionsthe design, suitsmanufacture, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether sale or not arising out distribution of third-party claims)products or the provision of services, including, without limitation, interestclaims for infringement, penaltiesproduct liability, reasonable attorney and accountant fees and all amounts paid in investigationcustomer support claims, defense or settlement claims for repair, replacement or return of products manufactured or sold or distributed by the Sellers prior to the Closing (but excluding any of the foregoing. The foregoing liabilities or obligations arising from the sale by the Buyer after the Closing of Acquired Assets consisting of products produced by the Sellers, and excluding the Assumed Warranty Obligations); (vi) all liabilities and obligations of the Sellers arising out of events, conduct or conditions to be assumed the extent existing or occurring prior to the Closing that constitute a violation of or non-compliance with any law, rule or regulation, any judgment, decree or order of any Governmental Entity, or any Permit; (vii) all liabilities and obligations of the Sellers related directly or indirectly to the environmental condition (and any adverse consequences arising therefrom) or operation of the facilities located on the Owned Real Property or pursuant to the Leases (the "Facilities") under applicable Environmental Laws, equipment and properties owned, leased or operated by the Sellers (including but not limited to on- and off-site liabilities and liabilities associated with the transportation or migration of hazardous substances or environmental contaminants to an offsite location) or arising out of events, conduct or conditions occurring prior to the Closing, regardless of whether such condition or operation constitutes a violation of, or non-compliance with, any Environmental Laws; provided, however, that to the extent that the amount of any such liabilities or obligations with respect to the environmental condition or operations of the Facilities which is known to the Buyer under this Agreement are hereinafter sometimes referred to is increased as a result of the “Liabilities,” and Buyer's operations of the Facilities occurring after the Closing, such increased amount of such liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder or obligations shall not enlarge be a Retained Liability; (viii) except for the Assumed Employee Liabilities, (A) all liabilities and obligations of the Sellers to pay any rights wages, compensation, bonus, incentives, accrued salary, accrued vacation, sick pay or severance benefits, or unemployment compensation, employee welfare or pension benefits, in each case to any current or former employee, agent, consultant, advisor or independent contractor of third parties the Sellers, (B) all liabilities and obligations resulting from the termination of employment of employees of the Sellers that arose under contracts any federal, state, local or arrangements foreign law or regulation or under any employee benefit plan established or maintained by the Sellers and (C) all liabilities and obligations of the Sellers with Buyer respect to any stock option plans or Sellerother equity benefit programs; (ix) all liabilities and obligations of the Sellers for injury to or death of persons or damage to or destruction of property arising out of events, conduct or conditions to the extent occurring prior to the Closing (except for obligations with respect to parts and nothing herein shall prevent labor as part of Assumed Warranty Obligations); (x) all liabilities and obligations of the Sellers for medical, dental and disability (both long-term and short-term) benefits, whether insured or self-insured, owed to employees or former employees of the Sellers; (xi) all liabilities and obligations of the Sellers and each ERISA affiliate arising out of or with respect to any party from contesting "multiemployer plan" (as defined in good faith Section 3(37) of ERISA) or other employee benefit plan, including but not limited to any Section 401(k) benefits or matching contribution obligations; (xii) all liabilities and obligations of the Sellers arising out of any claim, suit, action, arbitration, proceeding, investigation or other similar matter which commenced prior to the Closing or relates to the ownership of the Acquired Assets or the operation of the business of the Sellers on or prior to the Closing; (xiii) except for Assumed Liabilities, all liabilities and obligations of the Sellers for any claims and administrative or other expenses of whatever kind or nature, arising prior or subsequent to the commencement of the Bankruptcy Case, whether or not asserted; (xiv) all liabilities and obligations of the Sellers, or any of their officers, directors or employees (in such capacities) to any person or entity as a shareholder of the Sellers, including, without limitation, in connection with any third party any pending, threatened or future shareholder lawsuit; and (xv) all liabilities and obligations of said liabilitiesthe Sellers for trade debt (except for the Assumed Payables), borrowed money or other indebtedness, including, without limitation, in connection with all notes, bonds or other instruments or documents issued by the Sellers.

Assumption of Liabilities. Upon the sale and purchase As of the Subject Closing Date, Paonessa shall assume all outstanding liabilities related to the prxxxxxx xr the Purchased Assets, Buyer shall assume including any and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown Response relating to the practice and all practice expenses going-forward, including without limitation Clinic Expenses, Physician Expenses and any other related or reflected on the Base Balance Sheet which are outstanding at the time similar practice expenses contingent upon (1) Response seeking Bankruptcy Court approval of the Closingamounts as set forth in its Statement of Cure filed in February 2002 (the "STATEMENT OF CURE") as part of its motion to approve the Settlement Agreement envisioned hereby and (2) the Bankruptcy Court entering an order (the "ORDER") finding (i) that the amounts as set forth in the Statement of Cure accurately reflects any potential cure obligation the Debtors would be required to make with respect to assumption of Assigned Contracts, (ii) that the cure obligation set forth in the Statement of Cure shall be deemed satisfied upon closing of the transaction contemplated by this Agreement, (iii) that the Order is, to the extent permitted by law, binding upon all of Response's creditors and parties in interests, and all liabilities (iv) that the Assigned Contracts are assigned to Paonessa pursuant to the Order, and obligations incurred by Seller since the date (v) in no event will Paonessa's xx XXXX's assumption of the Base Balance Sheet pre-Closing Clinic Expenses xxxxxx xxx items specified in the ordinary course Cure Order or obligate Response to pay additional amounts. In the event the Court fails to enter the Cure Order or enters an order inconsistent with the requirements of business sections (i) through (v) of the preceding sentence, Paonessa or POMC, in his or its sole discretion, may elect to eithex (x) xxoceed with Assumption and consistent with Assignment of the Service Agreement and Assigned Contracts subject to the terms of this Agreement which are outstanding at the time of Order, provided the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (iPaonessa pays such cure amount(s) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; or (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before request that Response rejxxx xxx Service Agreement and/or one or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out more of the inclusion Assigned Contracts pursuant to 11 U.S.C. ss. 365 and Paonessa shall pay to Response a Purchase/Termination Fee equal to xxx xx xieu of Seller in any group filing consolidatedthe Purchase/Assignment Fee. In the event that the Service Agreement is rejected, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller no party will be deemed to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of have assumed any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as in the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesCure Order.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale ASAP hereby assumes, and purchase agrees to pay, observe and perform all of the Subject Assetsduties, Buyer shall assume obligations, terms, provisions and agree to pay or discharge when due in accordance with their respective terms covenants of all of Company's burdens, debts, obligations and liabilities of Seller shown every nature and kind, whether liquidated or reflected on the Base Balance Sheet which are outstanding at the time contingent, cxxxxx or inchoate, known or unknown, including but not limited to Company's accounts and trade payables, accrued expenses, payroll liabilities, vacation and sick pay accruals, deferred revenue, customer deposits, Yuan Loans, loans from Sxxxxxx Xxx, vendor and customer claims, obligations under any contracts, agreement, instruments, licenses and leases, accrued salaries and benefits, taxes of any kind or nature (including all taxes of the Closing, and all liabilities and obligations incurred by Seller since Company arising out of or with respect to the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with transactions under this Agreement and the transactions provided for hereinDistribution), filings made with any regulatory agencies, fines and penalties, obligations, damages or expenses (including fines and penalties) arising as a result of the Company's failure to comply with any laws, rules or regulations applicable to the Company or the Business (including, without limitation, counsel any and accountant feesall laws, rules and regulations under and with respect to the Securities Act of 1933, as amended, and expenses pertaining to the performance by Seller Securities Exchange Act of its obligations hereunder; (ii) Taxes (1934, as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinamended), employment matters and benefits (including any liability for Taxes and all liabilities arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to the termination of the Company's employees under this Agreement whether for severance, health care insurance continuation or any optionsother matter), warrantsemployment and consulting contracts, agreements debt, subordinated debt, claims made by any past or convertible or current holders of the Company's securities, warranties and other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, customer claims, actions and proceedings, demandspending or threatened, assessments and judgments, costs, losses, liabilities, damagesobligations or claims, deficiencies and expenses (whether or not presently asserted, arising out of, relating to or connection with the Assets or the Business heretofore conducted by the Company or any of third-its affiliates and subsidiaries at any time prior to the Effective Date (the "Assumed Liabilities"). The Assumed Liabilities shall include, but not be limited to: (i) all of the Company's liabilities and obligations under any contracts or agreements to which the Company is party claims)including all obligations for the payment of past, current or future amounts payable thereunder (including, without limitation, interestthe lease of the Company's office facilities in El Monte, penaltiesCalifornia, reasonable attorney any distribution, license, joint venture agreement involving the Company, and accountant fees any other contract or agreement relating to the Company or the Business) ("Contract Liabilities"); (ii) each of the liabilities set forth on Schedule B hereto, as may be amended and updated as provided herein, (iii) any claims by past or present stockholders, debt holders, warrant holders, or option holders of the Company on account of actions or events occurring prior to the Effective Date and/or with respect to the Distribution, and (iv) any and all amounts obligations of the Company with respect to the stock option or incentive plans of the Company and any and all options and shares issued under such plans ("Option Plans"). Within thirty (30) days following the Effective Date, the Company and ASAP shall cause the Auditor to deliver to the Company and ASAP the audited financial statements of the Company and ASAP as of the Effective Date. Upon such delivery, the Company and ASAP shall update and amend the Schedule B attached hereto and provide any supporting schedules reasonably required to identify the Assumed Liabilities in detail. Within thirty (30) days following the Effective Date, ASAP shall have: (i) paid in investigation, defense or settlement of any full each of the foregoing. The liabilities set forth on Schedule B hereto, as amended and modified, or provided for the payment thereof out the Subscription Funds, or obtained the consent to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities such liability by any party hereunder shall not enlarge any rights ASAP and a release of third parties under contracts or arrangements with Buyer or Seller, liability in favor of the Company; and nothing herein shall prevent any party (ii) obtained the consent to the assumption of all Contract Liabilities and a release of liability thereunder in favor of the Company from contesting in good faith with any the third party any of said liabilitiesto whom liability or obligation is owed now or in the future ("Release").

Assumption of Liabilities. Upon the sale and purchase of the Subject AssetsExcept as specifically provided herein, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all assumes none of Seller's liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant feesany employee claims, tort claims or any other liability of any type or nature), and expenses pertaining to Seller shall be solely responsible for the performance by Seller payment of its obligations hereunder;such liabilities; such liabilities are hereinafter called the "Retained Liabilities." (iia) Taxes Buyer hereby assumes and agrees to perform, pay and discharge all of Seller's obligations under the Assigned Contracts set forth in Exhibit 2.2(f). (as defined b) Buyer also assumes and agrees to perform, pay and discharge those liabilities and obligations of Seller identified on Exhibit 2.4 hereto. The "liabilities" described in Section 2.08 hereof2.4(a) of Seller (whether relating to periods before or after and 2.4(b) are hereinafter collectively called the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability;"Assumed Liabilities." (iiic) Liabilities of Seller Except as expressly agreed to its dissenting Shareholderspursuant to this Section 2.4, if anyBuyer does not assume or acquire, under and shall not be liable for the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims)Retained Liabilities, including, without limitationlimitation any other liabilities, interestobligations or debts of Seller, penaltieswhether direct or indirect, reasonable attorney asserted or unasserted, matured or unmatured, contingent or otherwise. Seller expressly agrees the Buyer does not assume any liability claim, damage, or expense arising from or in connection with the dual fatality involving Xx. Xxxxx Xxxxxx occurring on June 24, 1998 outside of Alexandria, Louisiana (the "Tort Claim") and accountant fees and all amounts paid in investigationthat any liability, defense claim, damages, or settlement of any other obligations associated with such claims are part of the foregoingRetained Liabilities. The liabilities to be assumed Retained Liabilities expressly excluded under the Tort Claim include, but are not limited to, (i) Civil Suit Number 12632 filed on July 16, 1998 in the 35th Judicial District Court for the Parish of Grant in the State of Louisiana by Buyer under this Agreement are hereinafter sometimes referred to as Xxxxxx Xxxxx Xxxxxxxx, individually and on behalf of the “Liabilities,” minor, Xxxxxxx Xxxxx; Xxxxxxx Xxxxx and Xxxx Xxxxx and the liabilities which are not assumed cross-claim filed thereunder by Buyer under this Agreement are hereinafter sometimes referred to as Xxxxxx Xxxxxx, individually and on behalf of the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Sellerminor, Xxxxxx Xxxxxx, naming ADS, Xxxxx Xxxxxx, and nothing herein shall prevent any party from contesting ADS's commercial automobile liability and commercial excess umbrella liability insurers, among others, as defendants; and (ii) Civil Suit No. 12723, filed on September 1, 1998 in good faith with any third party any the 35th Judicial District Court for the Parish of said liabilitiesGrant in the State of Louisiana by Xxxx Xxxxxxxx and the related cross-claim filed thereunder by Xxxxxx Xxxxxx, individually and on behalf of the minor, Xxxxxx Xxxxxx, naming the same defendants.

Assumption of Liabilities. Upon The Purchaser hereby agrees, subject to Section 1.6 hereof and the sale other terms and purchase conditions of this Agreement, that on and after the Subject Assets, Buyer Closing Date it shall assume and agree to pay or fully and timely perform, discharge when due and pay, in accordance with their respective terms terms, all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by of the Seller since relating to: (a) the deposit accounts attributed to the Branches as of the close of business on the day immediately preceding the Closing Date (including, without limitation, all checking, savings, certificate of deposit, individual retirement, Xxxxx, money market, time deposit, repurchase agreements and sweep accounts; provided, however, that it shall not include those certain swap account listed on Exhibit 1.5(a)(i) hereto) together with all accrued interest relating to such deposit accounts, such deposit accounts as of July 18, 2005, being listed on Exhibit 1.5(a)(ii) hereto (which Exhibit shall be updated to reflect new deposits made and deposits withdrawn or paid between the date of this Agreement and the Base Balance Sheet Closing Date) and shall be delivered to the Purchaser at the Closing (collectively, the “Deposit Liabilities”); (b) the Loans; (c) all obligations relating to all escrow funds and dealer reserves under the Loans listed on Exhibit 1.5(d); (d) the leases, equipment leases and operating contracts listed on Exhibit 1.3(e); (e) all safe deposit boxes and all rental agreements and contracts for the safe deposit boxes located at the Branches as of the Closing Date; (f) the operation from and after the Closing Date of the Branches in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for hereinbusiness, including, without limitation, counsel the payment or provision of salary, compensation and accountant fees, and expenses pertaining employee benefits to the performance by Seller of its obligations hereunderEmployees (as hereinafter defined) arising from and after the Closing Date; (iig) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out obligations of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholderspay the remaining two (2) installments each in the amount of Ten Thousand Dollars ($10,000.00) to the Economic Development Corporation of Clarksville, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classTennessee; and (vh) Liabilities all liabilities or obligations which are expressly identified elsewhere in connection with this Agreement as being assumed, performed, discharged or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of by the foregoingPurchaser. The liabilities and obligations described in this Section 1.5 that the Purchaser hereby agrees to be assumed by Buyer under assume and fully and timely perform, discharge and pay are referred to collectively in this Agreement are hereinafter sometimes referred to as the “Assumed Liabilities,” ”. On and after the Closing Date, the Seller shall have no duties, responsibilities, liabilities which are not assumed by Buyer or obligations under this Agreement are hereinafter sometimes referred or with respect to as the “Excluded Assumed Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of the Subject Assetsthis Agreement, Buyer shall assume on the Closing Date (or, in the case of Section 2.5(d), the Toledo Plant Closing Date, as applicable) and agree to pay or shall pay, perform and discharge when due the following obligations, liabilities and commitments of each Seller (collectively, the "Assumed Liabilities"): -20- <Page> (a) all obligations, liabilities and commitments of each Seller in accordance with their respective terms respect of any and all liabilities of Seller shown Products shipped by Buyer or reflected on the Base Balance Sheet which are outstanding at the time in respect of the operation of the Business at any time after the Closing Date except where such Products constituted finished products as of the Closing Date and such liabilities, obligations or commitments of Sellers constituted product liabilities or recall liabilities, unless (and to the extent that) the liabilities, obligations or commitments were caused by Buyer's negligence in the storage or transportation of such Products after the Closing or Buyer's failure after the Closing to employ quality control standards of at least the standards employed by Sellers prior to the Closing; (b) except as otherwise expressly provided in Section 7.12, and all liabilities and obligations incurred for manufacturer's coupons relating to Products, which coupons are received by the clearinghouse for reimbursement for all periods beginning sixty (60) days after the Closing Date, regardless of when such coupons were issued; (c) all obligations, liabilities and commitments of each Seller since and its Affiliates to the extent accruing, in accordance with the terms thereof, after the Closing Date, under Purchase Orders; (d) all liabilities, obligations and commitments of each Seller and its Affiliates to the extent accruing, in accordance with the terms thereof, after the Closing Date, under the Assigned Contracts; and all liabilities, obligations and commitments of each Seller and its Affiliates to the extent accruing, in accordance with the terms thereof, after the Toledo Plant Closing Date, under the Toledo Plant Assigned Contracts; and all liabilities, obligations and commitments of each Seller and its Affiliates under the Dividable Contracts with respect to any portions thereof transferred to Buyer, to the extent accruing in accordance with the terms thereof, after the date of transfer to Buyer, under such portions, and all liabilities, obligations and commitments of each Seller and its Affiliates under the Base Balance Sheet Toledo Plant Dividable Contracts with respect to any portions thereof transferred to Buyer, to the extent accruing in accordance with the terms thereof, after the date of transfer to Buyer, under such portions; (e) all liabilities and obligations for trade promotions arising from (i) trade promotion activities or events primarily related to the Business that are committed to after the Closing Date and occur at any time following the Closing Date or (ii) trade promotion activities or events primarily related to the Business that occur following the Closing Date and that were committed to before the Closing Date, except to the extent any such single activity or promotion was not disclosed, on SCHEDULE 2.5(e) or otherwise, to Buyer by Sellers and the liability and obligation per customer buying group related to such activity or promotion exceeds $100,000 unless such activity or promotion was committed to by Sellers in the ordinary course consistent with past practice; (f) all refund and replacement obligations relating to Products shipped prior to Closing and returned after the date that is thirty (30) days after the Closing Date and for retail unsaleables in all periods beginning thirty (30) days after the Closing Date; (g) all liabilities and obligations for customer deductions (which shall not include liabilities and obligations for coupons, trade promotions or refund and replacement obligations or retail unsaleables, which are addressed by paragraphs (b), (e) and (f) of this -21- <Page> Section 2.5) attributable to invoices with respect to Products shipped after the Closing Date; PROVIDED that, for those customer deductions relating to Products for which it cannot be specifically determined whether the sale was after the Closing Date, Sellers and Buyer shall be responsible for liabilities and obligations for such customer deductions in accordance with the prorated percentages for the applicable time periods set forth in SCHEDULE 2.5(g); (h) all liabilities for Taxes attributable to the Business, the Assets, any Other Business, the Special Inventory or any Other Assets (provided that Buyer shall not assume liability for any Excluded Taxes); (i) all liabilities, obligations and commitments of each Seller for Inventory ordered by each Seller in the ordinary course of business prior to the Closing Date and consistent with delivered to Buyer after the terms Closing Date, PROVIDED that such Inventory has not been included in the Closing Inventory Statement or the Conversion Date Inventory Statement and been given effect in any adjustment to the Purchase Price or credit under the Co-Pack Agreement under Section 2.9 or resulted in a Conversion Date Payment pursuant to Section 2.10; and (j) liabilities for vacation and paid time off for Business Employees employed by Buyer to the extent accrued by Sellers to the date of this Agreement which are outstanding at the time of the Closinghire by Buyer ("Accrued Paid Time Off"), provided, however, PROVIDED that Buyer is reimbursed or credited by Sellers pursuant to Section 5.8(c) for such Accrued Paid Time Off. Without limiting any rights provided to Buyer in Article 9, Buyer's obligations under this Section 2.5 shall not assume and shall not pay the following liabilities: (i) Liabilities incurred be subject to offset or reduction by Seller in connection with this Agreement and the transactions provided for hereinreason of any actual or alleged breach of any representation, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before warranty or after the transactions contemplated covenant contained in this Agreement or incurred by Seller any document delivered in connection with this Agreement and the transactions provided for herein), including herewith or any liability for Taxes right or alleged right to indemnification hereunder arising out of the inclusion of Seller in any group filing consolidated, combined from such actual or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilitiesalleged breach.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On and subject to the sale terms and purchase conditions of this Agreement, the Buyer agrees to assume and become responsible for all of the Subject Assets"Assumed Liabilities" (as hereinafter defined) at the Closing. The Buyer will not assume or have any responsibility, Buyer shall assume and agree however, with respect to pay any other obligation or discharge when due in accordance with their respective terms liability of the Seller not included within the definition of Assumed Liabilities. For purposes of this Agreement, "Assumed Liabilities" means (a) all liabilities of the Seller shown or reflected on attributable to the Base Balance Sheet Assets which are outstanding at may arise after the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Closing Date in the ordinary course of business (other than any liability resulting from, arising out of, relating to, in the nature of, or caused by any breach of contract, breach of warranty, tort, infringement, violation of law, or environmental matter, including without limitation those arising under environmental, health, and consistent with the terms of this Agreement which are outstanding at the time safety requirements); (b) all obligations of the ClosingSeller under the agreements, providedcontracts, howeverleases, that Buyer shall not assume licenses, and shall not pay other arrangements referred to in the following liabilities: definition of Assets either (i) to furnish goods, services, and other non-cash benefits to another party after the Closing Date or (ii) to pay for goods, services, and other non-cash benefits that another party will furnish to it after the Closing Date; and (c) all obligations of Seller with Southwestern Xxxx Telephone Co. for the Frame Relay circuit between Bartlesville and Tulsa and for the three (3) incoming digital T-1 trunk lines, prorated as of the Closing Date with the Seller remaining obligated for such obligations that are incurred before and as of the Closing Date and the Buyer assuming such obligations that are incurred after the Closing Date; PROVIDED, HOWEVER, that the Assumed Liabilities shall not include (i) any liability of the Seller for taxes, (ii) any obligation of the Seller to indemnify any person (including any of the Seller's stockholders) by reason of the fact that such person was a manager, officer, employee, or agent of the Seller or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any statute, articles of association, operating agreement, agreement, or otherwise), (iii) any liability of the Seller for costs and expenses incurred by Seller in connection with this Agreement and the transactions provided for hereincontemplated hereby, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements liability or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any obligation of the foregoing. The liabilities to be assumed by Buyer Seller under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAgreement.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon (a) Buyer agrees that on the sale and purchase of the Subject AssetsClosing hereunder, Buyer it shall assume and agree to pay or discharge when due (i) Seller's accounts payable arising in accordance with their respective terms all liabilities the ordinary course of Seller shown or reflected on business, as the Base Balance Sheet which are outstanding same shall exist at the time of the Closing, and all liabilities and obligations incurred by Seller since it being understood that such accounts payable as at the date of execution of this Agreement are as set forth on Seller's financial statements for the Base Balance Sheet period ended November 30, 2000 ($736,982) as the same may be adjusted by trade accounts payable incurred in the ordinary course of business through the date of Closing plus such non-trade payables as may be incurred from and consistent with after November 30, 2000 which Buyer may, after full review, elect to assume, (ii) assume and agree to perform as and when due the terms contracts of this Agreement which are outstanding at Seller described on Exhibit 1.3(b) (the time of "Contracts"), (iii) pay the accrued rent on the Company's plant, and (iv) assume any other contracts approved in writing by Buyer prior to the Closing. Seller and the Shareholders, providedjointly and severally, howeverrepresent and warrant that there are no contracts or agreements of Seller of any kind relating to the purchase and/or sale of items relating to Seller's Business, other than those set forth on Exhibit 1.3, to which it is a party or by which it is bound. (b) It is understood and agreed that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided be liable for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The obligations or liabilities to be of Seller of any kind or nature other than those specifically assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” Section and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge be liable for nor assume any rights other obligations including, but not limited to, any income, sales, use or other taxes and loans payable to banks and shareholders, under any existing sales, distribution and development agreements, or any obligations to employees of third parties Seller. Buyer is not assuming any leases for real property and only such leases for personal property as it may elect. Seller is and shall remain solely and absolutely liable for all of its liabilities and obligations of every kind and nature, including but not limited to those created by contract. With respect to existing obligations and liabilities of the Seller under the contracts or arrangements with set forth on Schedule 1.3(b), Purchaser's only obligations shall be to accept an assignment of such contracts on a prospective basis and Seller shall reimburse Buyer or Seller, for Buyer's fully loaded cost for performing warranties and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.service contracts for goods sold prior to Closing (which may be called "Warranty

Assumption of Liabilities. Upon the sale EPIC hereby assumes, and purchase agrees to observe and perform all of the Subject Assetsduties, Buyer shall assume obligations, terms, provisions and agree to pay or discharge when due in accordance with their respective terms covenants of, all of MITR's burdens, obligations and liabilities of Seller shown every nature and kind, whether liquidated or reflected on the Base Balance Sheet which are outstanding at the time of the Closingcontingent, xxxxxx or inchoate, known or unknown, including but not limited to MITR's accounts payable, vendor claims, notes payable, accrued salaries and benefits, taxes, fines and penalties, accrued expenses, employment matters, stock option plans, employment contracts, debt, subordinated debt, warranties and other customer claims, actions and proceedings, pending or threatened, and all claims, whether or not presently asserted, arising out of, relating to or connection with MITR's assets and business prior to the transaction consummated hereunder (the "Assumed Liabilities"). The Assumed Liabilities shall include but not be limited to MITR's liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closingunder, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating related to all actionsthe following: a. All Notes Payable from MITR to N. Xxxxxx Xxxx; b. Lease Agreement between MITR and Xxxx Xxxx for facility at 00 Xxxxxxx Xxxx Road, suitsBedford, claimsNew Hampshire, proceedingsas renewed and amended; c. Exclusive License Agreement dated March 31, demands1998 between MITR and N. Xxxxxx Xxxx; d. Agreement between MITR and ACG Advisors, assessments LLC and judgmentsACG Securities, costsLLC dated September 26, losses2001; e. MITR's 1998 Stock Option Plan; f. Taxes for periods prior to or through the date of this Agreement; g. Filings required to be made with the Securities and Exchange Commission for periods prior to or through the date of this Agreement; h. Any claims by shareholders, liabilitieswarrant holders, damagesor option holders on account of actions by or on behalf of MITR taken through the time and date of this Agreement, deficiencies and expenses (whether the transaction contemplated hereunder or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any the subsequent distribution of the foregoing. The liabilities EPIC capital stock held by MITR to be assumed its shareholders, including but not limited to claims made by Buyer under Xxxx X. XxXxxx and Growth Ventures, Inc. Profit Sharing Plan and Trust; and i. All business activities engaged in by MITR prior to the date of this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesAgreement.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon At the sale and purchase of the Subject AssetsClosing, Buyer shall assume assume, and shall agree to pay or satisfy and discharge when as the same become due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all only those liabilities and obligations incurred by of Seller since specifically listed on EXHIBIT A hereto (the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms "Assumed Obligations") and, subject to Section 1.4 of this Agreement which are outstanding at Agreement, the time of the Closing, provided, however, that Assumed Leases (as hereafter defined). Buyer shall not assume and or be responsible at any time for any liability, obligation, debt or commitment of Seller, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise, that is not expressly listed on EXHIBIT A hereto. Without limiting the generality of the foregoing sentence, Buyer shall not pay assume or be responsible for any of the following following: any amounts due to any of Seller' creditors listed on EXHIBIT A hereto in excess of the amounts expressly listed thereon; any matured obligations under leases, licenses, contracts or agreements in excess of the amounts expressly listed on EXHIBIT A hereto; any liabilities: (i) Liabilities , obligations, debts or commitments of Seller incident to, arising out of, or incurred by Seller in connection with respect to, this Agreement and the transactions provided for hereincontemplated hereby; any and all franchise, includingincome, without limitationgross receipts, counsel and accountant feesexcise, and expenses pertaining to the performance by Seller of its obligations hereunder; payroll, personal property (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before tangible or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for hereinintangible), including real property, ad-valorem, value added, leasing, leasing use, or other taxes, levies, imposts, duties, charges or withholdings of any liability for Taxes nature arising out of the inclusion of Seller in any group filing consolidatedtransactions contemplated hereby, combined or unitary except that Buyer shall be responsible for paying the sales and use tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any that will arise from this transaction. Buyer's assumption of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as Assumed Obligations shall in no way expand the “Liabilities,” rights and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights remedies of third parties under contracts or arrangements with against Buyer or Seller, as compared to the rights and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilitiesremedies which such parties would have had against Seller had this Agreement not been consummated.

Assumption of Liabilities. (a) Upon the sale terms and purchase of subject to the Subject Assetsconditions set forth in this Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time as of the Closing, Buyers agree to assume, satisfy, perform, pay, discharge and be solely responsible for any and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Liabilities related to the Purchased Assets or the Business (other than the Excluded Liabilities), including the Liabilities set forth below in this Section 2.1(a) (collectively the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:“Assumed Liabilities”): (i) all Liabilities incurred by Seller arising in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller respect of its obligations hereunderany Assumed Contracts; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether all Liabilities for replacement of, or refund for, damaged, defective or returned goods relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein)CCR Assets, including any liability for Taxes arising out of the inclusion of Seller items purchased in any group filing consolidated, combined gift shop or unitary tax returns or arising out of any transferee liabilitysimilar facility at the Hotel which is operated by CCI; (iii) all Liabilities of Seller with respect to its dissenting Shareholdersentertainment, if anyhotel, under meeting, banquet or other facilities reservations relating to the Massachusetts Business Corporation LawHotel; (iv) all Liabilities for Post-Closing Taxes, any Liabilities for Transfer Taxes that are the responsibility of Seller Buyers pursuant to Section 8.8(b), and all other Taxes and other amounts that are the responsibility of Buyers pursuant to Section 8.8(a); (v) (A) all Assumed Employee Obligations and (B) all Liabilities arising out of or related to pre-Closing events by CCI with respect to Property Employees, but excluding any optionsLiabilities arising out of or related to (x) any Seller Benefit Plan that is not an Assumed Employee Obligation (which Seller Benefit Plans include, warrantswithout limitation, agreements all termination, severance, separation pay, transaction bonus and other incentive plans) or convertible (y) the employment of the Reserved Employees; (vi) all Liabilities arising out of or other rights to acquire any shares of its capital stock relating to, directly or indirectly, the termination of any classProperty Employee; (vii) all current Liabilities reflected in the Final Closing CCR Net Working Capital, including the Progressive Liabilities reflected thereon; (viii) all Liabilities arising out of or relating to any disputes, arbitrations, and litigation matters relating to the Business or the CCR Assets, which disputes, arbitrations and litigation matters as of the Effective Date are (and as updated prior to the Closing pursuant to Section 5.2(n) will be) listed in Section 2.1(a)(viii) of the Seller Disclosure Letter (collectively, “Assumed Proceedings”); (ix) all Liabilities arising out of the Seller 401(k) Plan or Substituted Multiemployer Plan relating to the Transferred Employees to the extent set forth in Section 8.3(g) and Section 8.3(h) hereof; (x) all Liabilities arising out of participation by the Business in any Multiemployer Plan, including, but not limited to, withdrawal liability; (xi) without limiting the rights and obligations of the parties set forth in ARTICLE 11 hereof, all Liabilities under Environmental Laws, including Environmental Liabilities relating to, resulting from, caused by or arising out of ownership, operation or control of the Real Property, the CCR Assets or the Galleon/Eldorado Property, arising before or after the Closing Date, and any Liability relating to contamination or exposure to Hazardous Substances at or attributable to the Real Property, the CCR Assets or the Galleon/Eldorado Property; (xii) all Liabilities with respect to the Chips and Tokens; (xiii) all Liabilities with respect to Inventoried Vehicles, baggage, suitcases, luggage and the contents of safety deposit boxes pursuant to Section 8.10(c), (d) and (f) hereof; (xiv) any items set forth on Section 2.1(a)(xiv) of the Seller Disclosure Letter; and (xv) all Liabilities of Galleon and CCI under the Operative Documents or incident to the Equity Interest, the Reno Interest, the Downtown Interest and the Newco Interest, respectively, including with respect to the Equity Interest, all loans and indebtedness related to the Joint Venture or its business, including the loans and indebtedness evidenced by the Credit Support Documents. (b) Notwithstanding anything contained in this Agreement to the contrary, from and after the Closing Date, Sellers shall retain the following Liabilities (collectively, “Excluded Liabilities”): (i) any Liability that relates solely to any Excluded Asset; (ii) all Excluded Employee Liabilities and any Liability arising out of or related to the employment of any Reserved Employees; (iii) all Liabilities for Pre-Closing Taxes, and any Liabilities for Transfer Taxes that are the responsibility of Sellers pursuant to Section 8.8(b); (iv) except as provided in Section 2.1(a)(v), Section 2.1(a)(x), Section 8.3(h) and Section 8.3(i), any Liabilities under the Seller Benefit Plans; and (v) Liabilities except as provided in connection with the Transition Services Agreement and for outstanding Chips and Tokens held by any of CCI’s Affiliates (to the extent reserved against, included or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out reflected as a current liability in the calculation of third-party claimsCCR Net Working Capital), includingall Liabilities of CCI or the Business to any of CCI’s Affiliates. For the avoidance of doubt, without limitation, interest, penalties, reasonable attorney and accountant fees the calculation of CCR Net Working Capital shall exclude any and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities accruals and reserves related to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale A. Buyer and purchase of the Subject AssetsSeller agree that, except as provided in Section 2.2B hereof, Buyer shall assume is not purchasing, assuming, or accepting any debts, liabilities or obligations whatsoever of Seller, contingent or non-contingent, liquidated or unliquidated, asserted or unasserted (the "Excluded Liabilities"), all of which remain the debts, liabilities, and agree to pay or discharge when due in accordance with their respective terms all liabilities obligations of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of Seller. B. At the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not will assume and shall not pay only the following liabilities:obligations of Seller (the "Assumed Liabilities"): (i) Liabilities incurred by Seller in connection with this Agreement and Obligations under purchase orders, commitments or contracts identified on EXHIBIT "3.13B", as updated through the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining Effective Date pursuant to the performance by Seller of its obligations hereunderSection 3.13E; (ii) Taxes (All sales orders, commitments or contracts with customers identified on EXHIBIT "3.13A", as defined in updated through the Effective Date pursuant to Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability3.13E; (iii) Liabilities All of Seller Seller's other Contracts listed on EXHIBIT "3.13C", which Buyer has reviewed, approved, and elected to its dissenting Shareholdersassume (in Buyer's sole and absolute discretion) excluding those agreements, if any, under listed on the Massachusetts Business Corporation LawSchedule of Unassumed Contracts attached hereto as EXHIBIT "3.13F"; (iv) Liabilities All trade payables identified and recorded on the Audited Closing Statement; (v) The IRB Loan, to the extent identified and recorded on the Audited Closing Statement but expressly excluding any penalty or premium arising out of: (a) the assumption by Buyer of Seller with respect the IRB Loan, or (b) the prepayment of the IRB Loan, in whole or in part, on the Closing Date; (vi) The Term Loan, to the extent identified and recorded on the Audited Closing Statement but expressly excluding any optionspenalty or premium arising out of the assumption by Buyer of the Term Loan, warrantsor (b) the prepayment of the Term Loan, agreements in whole or convertible or other rights to acquire any shares in part, on the Closing Date; (vii) Accrued real estate taxes and personal property taxes payable each of its capital stock of any classwhich shall be recorded on the Audited Closing Statement; and (vviii) Liabilities Accrued vacation pay but solely to the extent identified and recorded on the Audited Closing Statement (the "Vacation Accrual"). Buyer agrees to use its reasonable efforts and to cooperate with Seller to obtain following the Closing, in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any the assumption of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” IRB Loan and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred Term Loan, a release of Seller and Shareholders from their respective guaranties, in forms and substance reasonably satisfactory to as Seller and the “Excluded LiabilitiesShareholders.” C. The assumption of said liabilities Assumed Liabilities by any party Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing . Nothing herein shall prevent any party Buyer from contesting in good faith with any third party any of said the Assumed Liabilities; PROVIDED, HOWEVER, that Buyer's right to contest any of the Assumed Liabilities shall not diminish or otherwise affect Seller's right to indemnification under Section 10.2 arising out of Buyer's failure to pay any of the Assumed Liabilities. D. Except as expressly provided in Section 2.2B, Buyer is not assuming any of the following obligations of Seller, all of which remain the debts, liabilities., and obligations of Seller:

Assumption of Liabilities. Upon the sale and purchase (i) Buyer shall as part of the Subject Assets, Buyer shall assume consideration for the transfer and agree to pay or discharge when due sale of the Partnership Interests and otherwise in accordance with their respective terms the Transaction, assume, pay, perform and discharge (A) all liabilities Liabilities of Seller shown Seller, in its capacity as the general partner of FAS or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether otherwise relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion FAS Business, and FAS known by Xxxxxxx X. Xxxxxx or Xxxxxxx Xxxxxxxxx, whether or not disclosed on the Most Recent Balance Sheets or Seller's or Buyer's Disclosure Schedules (hereinafter defined) and regardless of Seller when they arose, (B) all Liabilities of Seller, in any group filing consolidated, combined its capacity as the general partner of FAS or unitary tax returns otherwise relating to or arising out of the FAS Business, and FAS which arose on or after November 18, 1997, whether or not known by ICC, Seller or Buyer or any transferee liability; of their respective principals, and (iiiC) all Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or ICC relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses or arising out of the FAS Business known by Xxxxxxx X. Xxxxxx or Xxxxxxx Xxxxxxxxx (whether or not arising out disclosed on the Most Recent Balance Sheets or Seller's or Buyer's Disclosure Schedules and regardless of third-party claimswhen they arose) or which arose on or after November 18, 1997 (whether or not known by ICC, Seller or Buyer or any of their respective principals), including, without limitation, interestthe following specific Liabilities in accordance with their respective terms, penaltiesas such exist on the date hereof or as such are incurred in the Ordinary Course of Business between the date hereof and the Closing Date but only insofar as such Liabilities come within the meaning of clauses (A), reasonable attorney and accountant fees (B) or (C) above (collectively, the "Assumed Liabilities"): (1) any and all amounts paid in investigationLiabilities that ICC and the Seller have under or associated with the Mellon Loan, defense adjusted as of the Closing Date; (2) any and all Liabilities that ICC and the Seller have under or settlement associated with the Hatboro Lease; (3) any and all Liabilities that ICC and the Seller have under or associated with the Arsenal Lawsuit; (4) the Balance Sheet Liabilities, adjusted as of the Closing Date; (5) any and all Liabilities for Seller's and FAS' employee wages, salaries, payroll taxes and accrued, earned and deferred vacations or sick pay; (6) any and all Liabilities for the obligations of ICC, Seller and FAS under the contracts, agreements, commitments and equipment leases related to or arising out of the FAS Business; (7) any and all Liabilities of ICC, Seller and FAS related to or arising out of any employment, consulting or similar contract or unemployment compensation benefits or costs, worker's compensation claims, employee pension benefit plans, employee welfare benefit plans, or any other employment plans or policies, related to or arising out of the foregoing. The liabilities FAS Business, including, without limitation, that certain Employee Benefits Agreement dated February 27, 1998 by and between Hexcore (as successor to Engelhard/ICC), FAS and ICC; (8) any and all Liabilities of ICC, Seller and FAS under Environmental Laws, any costs and expenses of any proceeding relating thereto and any costs and expenses of avoiding any such Liabilities related to or arising out of the ownership, leasing or operation of FAS or the FAS Business; (9) any and all Liabilities of ICC, Seller and FAS arising out of, or related to, warranty claims or product liability claims for products shipped, or services provided, by FAS or its predecessors conducting the FAS Business; (10) any and all Liabilities of ICC, Seller and FAS related to or arising out of the branch office of FAS or its predecessors conducting the FAS Business located in the Republic of South Korea; and (11) any and all Liabilities of ICC, Seller and FAS under that certain Royalty Agreement dated February 7, 1994 among Engelhard/ICC, Xxxxx Xxxxxxxx and Xxxx Xxxxxx, and under that certain Agreement dated February 27, 1998 among ICC, Seller, ICC Investment, L.P., Engelhard, Xxxxxxxxx XX, Xxxxxxxxx/ICC and FAS relating to the resolution of any obligations under such Royalty Agreement. (ii) Except as set forth in subsection 1(c)(i) above, the Buyer shall not, by virtue of its purchase of the Partnership Interests or otherwise in connection with the Transaction, assume or become responsible for any Liabilities whatsoever, whether or not related to the FAS Business. (iii) Notwithstanding anything herein to the contrary, Buyer shall not assume or be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” responsible for, and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded term "Assumed Liabilities.” The assumption of said liabilities by any party hereunder " shall not enlarge include, any rights federal, state or local tax Liability of third parties under contracts ICC or arrangements Seller (a) related to the restructuring transactions described and agreed to in that certain Master Agreement among ICC Technologies, Inc., ICC Desiccant Technologies, Inc., ICC Investment L.P., Engelhard Corporation, Xxxxxxxxx XX, Inc. and Engelhard/ICC dated as of November 17, 1997 and consummated on or about February 27, 1998 (the "Restructuring"), or (b) incurred by Seller or ICC as a result of the transaction contemplated by this Agreement, provided, however, that, at Seller's election, Buyer shall pay one half of any Federal Alternative Minimum Tax (the "AMT") owed by Seller in connection with the Restructuring up to a maximum of $100,000 pursuant to the following terms and conditions: Buyer or Sellershall cause FAS to pay such portion of the AMT by delivery of a note dated the date of the tax payment payable over a three year period, Buyer shall guaranty 60% of such note, and nothing herein shall prevent Seller will credit Buyer with Buyer's pro rata portion of any party from contesting tax credit that Seller obtains in good faith connection with any third party any the payment of said liabilitiesthe AMT.

Assumption of Liabilities. Upon (a) Subject to the sale and purchase provisions of the Subject Assetsthis Agreement, Buyer shall assume assumes and agree agrees to pay or to discharge when due in accordance with their respective terms all liabilities the following obligations of Seller shown or reflected on (the Base Balance Sheet which are outstanding "Assumed Liabilities"): (i) SBA Loan # GP750,241-30-06-DEN in the amount (principal and interest) of approximately $68,417 (the "SBA Loan"); and (ii) accounts payable and accrued expenses as at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet Closing incurred in the ordinary course of business and consistent with not payable to any Affiliate of Seller or the terms Shareholder, and not including automobile loan payments relating to Seller's 1992 Dodge Caravan and 1995 Dodge Caravan and in any event not to exceed (without the consent of this Agreement which are outstanding at Buyer) $55,000. (b) Except as specifically assumed by Buyer pursuant to the time of the Closingimmediately preceding sentence, provided, however, that Buyer shall not assume or have any liability with respect to any other obligation or liability of Seller, whether absolute, accrued, contingent or otherwise, and whether due or to become due (the "Excluded Liabilities"). Without limiting the previous sentence, the parties acknowledge that Buyer shall specifically not pay the following liabilities: (i) Liabilities assume, in addition to all other Excluded Liabilities, any liability for Taxes payable by Seller or any liability for any legal, accounting or other fees or expenses incurred by Seller in connection with this Agreement the negotiation and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller execution of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoingrelated agreement. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities the Assumed Liabilities by any party Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, Seller and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilitiesthe Assumed Liabilities. (c) Buyer acknowledges that it shall pay all obligations, including Taxes (other than any such taxes referred to in Section 2.9), incurred by Buyer following the Closing.

Assumption of Liabilities. Upon From and after the sale and purchase of the Subject AssetsEffective Time, Buyer shall Buyers agree to assume and agree to timely pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on and perform the Base Balance Sheet which are outstanding at the time of the Closing, and all following liabilities and obligations incurred by Seller since (collectively, “Assumed Liabilities”): (a) the date obligations of Sellers under and pursuant to the terms and conditions of the Base Balance Sheet in Preneed Agreements not excluded from the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining Assets pursuant to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein1.2(l), including any liability certificates or benefits associated therewith, as well as all Services in Progress (as defined below); (b) the obligations of Sellers under and pursuant to the terms and conditions of the Real Property Leases (if any) and the Assumed Contracts; (c) upon the transfer of the Preneed Trust Funds and/or Endowment Care Funds, Buyers will assume and thereafter in due course pay, perform and discharge the liabilities and obligations of Sellers arising from and after the Effective Time under the terms of or in connection with the Preneed Trust Funds and/or Endowment Care Funds; (d) all obligations of Sellers arising via contract, stipulation, memorandum of understanding, agreement, consent, or under applicable Law for Taxes any construction, repair, remodeling, or development project with respect to the Business arising from and after the Effective Time; (e) the following liabilities and obligations arising out of or in connection with the inclusion of Seller Real Property, the Improvements or the Business: (i) any all issues or conditions identified with reasonable particularity in any group filing consolidated, combined Phase I Environmental Site Assessments; (ii) all issues or unitary tax returns or arising out of conditions identified with reasonable particularity in any transferee liability; Property Condition Assessment; and (iii) Liabilities of Seller to its dissenting Shareholdersany fact, if anymatter, under condition, deficiency, encumbrance, or encroachment reflected or referenced in any Title Commitment or Survey, other than (A) monetary liens or encumbrances affecting the Massachusetts Business Corporation Law; Real Property and Improvements shown on any Title Commitment 5 or Survey, and (ivB) Liabilities of Seller with respect to matters not shown on any optionsTitle Commitment or Survey (collectively, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classthe “Assumed Matters”); and and (vf) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, lossesobligations, liabilities, damages, deficiencies and/or duties relating to the Business and expenses (whether or not first arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney from and accountant fees and all amounts paid in investigation, defense or settlement of any of after the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesEffective Time.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale Cutler hereby assumes, and purchase agrexx xx pay, observe and perform all of the Subject Assetsduties, Buyer shall assume obligations, terms, provisions and agree covenants of, all of Company's burdens, debts, obligations and liabilities of every nature and kind, whether liquidated or contingent, choate or inchoate, known or uxxxxxx, including but not limited to Company's accounts payable, vendor claims, notes payable, obligations under any contracts, agreement, instruments, licenses and leases, leases for office space, storage facilities, automobiles and other real or personal property, accrued salaries and benefits, taxes of any kind or nature, employment tax withholding and payroll taxes, filings made with any regulatory agencies, fines and penalties, accrued expenses, employment matters and benefits, employment contracts, debt, subordinated debt, claims made by any past or current holders of the Company's securities , warranties and other customer claims, actions and proceedings, pending or threatened, and liabilities, obligations or claims, whether or not presently asserted, arising out of, relating to or connection with any business heretofore conducted by the Company or any of its affiliates and Subsidiaries at any time prior to the closing of that certain Securities Purchase Agreement ("Purchase Agreement") dated March 16, 2005 by and among KI Equity Partners I, LLC ("KI Equity") and Cutler, but specifically excludxxx xxe obligations of the Company under the Note (the "Assumed Liabilities") and the Public Storage lease on a month-to-month basis. Without limiting the foregoing, Cutler agrees to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time and satisfx xx xhe closing of the ClosingPurchase Agreement any and all Edgar filing fees, stockholdex xxxling costs, transfer agent fees, taxes, transfer fees, regulatory and state fees, finders or consulting fees, and all liabilities other legal, accounting and obligations other fees and expenses incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller Company in connection with this Agreement and the transactions provided for herein, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesPurchase Agreement.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon On the sale terms and purchase subject to the conditions set forth herein, from and after the Closing, the Buyer will assume and satisfy or perform all of the Subject Liabilities of the Seller or any Affiliated Transferor in respect of, or otherwise arising from the operation or use of the Acquired Assets, Buyer other than the Excluded Liabilities (as set forth in Section 2.4 below), including the following Liabilities (the "Assumed Liabilities"): (a) all Environmental Liabilities (including, without limitation, the Environmental Liabilities relating to the properties referenced in Sections 5.3.3 and 5.3.4, other than the limited obligations with respect thereto retained by Seller pursuant to such Sections (which retained obligations shall assume fully and agree to pay or discharge when due finally terminate upon Seller's satisfaction thereof in accordance with their respective terms the requirements of such Sections)), other than the Excluded Liabilities (as set forth in Section 2.4 below); (b) all liabilities of Seller shown or reflected on Liabilities under (i) the Base Balance Sheet which are outstanding at the time of the ClosingContracts, Leases, and all liabilities the Transferable Permits in accordance with the terms thereof, (ii) the contracts, leases and obligations incurred other agreements entered into by the Seller since with respect to the date Acquired Assets which would be required to be disclosed on Schedule 2.1(c) or 2.1(f) but for the exception provided in clause (iii) of Section 3.8(a), in accordance with the Base Balance Sheet in terms thereof, and (iii) the ordinary course of business contracts, leases, commitments and other agreements entered into by the Seller with respect to the Acquired Assets during the Interim Period consistent with the terms of this Agreement which are outstanding at (including, without limitation, Capital Commitments); (c) all Liabilities under the time Permitted Encumbrances other than under or with respect to the exercise of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:Reserved Easements; (id) all Liabilities incurred by Seller to Customers under the Contracts to which such Customers are a party and/or in connection with this Agreement and the transactions provided for hereinuse, operation and/or ownership of the Distribution System and/or the Facilities, including, without limitation, counsel the obligation to provide electrical and accountant fees, and expenses pertaining related services to the performance Customers; provided that Seller shall retain any undisclosed Liability arising out of any failure by Seller of its obligations hereunderto deliver electrical, water or related services to such Customers as required by such Contract(s) during the forty- five (45) days before the Closing Date; (iie) Taxes (as defined in Section 2.08 hereof) of Seller (whether all Liabilities relating to periods before the Acquired Assets, including any FERC fees or after headwater benefits assessments assessed on the transactions contemplated Facilities and all Liabilities associated with the structural integrity of buildings adjacent to the Acquired Assets; and (f) all other Liabilities expressly allocated to the Buyer in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded LiabilitiesRelated Agreements.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale terms and purchase subject to the conditions of the Subject Assetsthis Agreement, Buyer shall assume and agree to pay or discharge when due in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding shall, effective at the time of the Closing, assume and agree to discharge and perform when due, the Liabilities of Seller (and only those Liabilities of Seller) which are enumerated in this Section 2.3 (the “Assumed Liabilities”). The following Liabilities of Seller (and only the following Liabilities) shall constitute the Assumed Liabilities: (a) all liabilities Cure Amounts due and obligations incurred by Seller since owing under any Assumed Contracts up to a maximum of $500,000 (the date “Cure Cap”); (b) all of Seller’s Liabilities under the Assumed Contracts arising on and after the Closing Date; (c) all Liabilities arising out of the Base Balance Sheet operation or ownership of the Acquired Assets first arising during, and related to, any period following the Closing Date; (d) those specific Liabilities of Seller (if any) identified on Schedule 2.3(d) attached hereto; (e) all Tax liabilities relating to the Acquired Assets for a Tax period (or portion thereof) beginning on or after the Closing Date, but excluding (i) all income Tax liabilities of Seller for any Tax period, and (ii) any Transaction Taxes (which shall be governed by Section 7.1(a)); (f) the Obligations (as defined in the ordinary course of business and consistent with DIP Order) which shall include, without limitation, (i) any obligations outstanding under the terms of this Agreement which are outstanding at the time DIP Order as of the Closing Date and (ii) the amount, if any, of the Carve-Out (as defined in the DIP Order) which is required to be funded after the Closing Date; provided that the sum of all cash of the Business as of the Closing Date shall reduce the amount of such Obligations (the “Assumed DIP Obligations”); and (g) any Liabilities to the Transferred Employees that may arise as a result of Buyer’s conduct after the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities:; (h) all Liabilities as set forth in Section 6.3; (i) Liabilities incurred by Seller in connection with this Agreement and arising under the transactions provided for hereinXXXX, including, without limitation, counsel and accountant fees, and expenses pertaining to the performance extent the XXXX is approved pursuant to an order entered by Seller of its obligations hereunder; (ii) Taxes (as defined in Section 2.08 hereof) of Seller (whether relating the Bankruptcy Court, up to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classXXXX Limit; and (v) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.

Assumption of Liabilities. Upon the sale and purchase of the Subject Assets, (a) Buyer shall at Closing assume and agree to pay or pay, discharge when due and perform the following Liabilities of the Emmis Entities and the Station (collectively, the "Assumed Liabilities"): (i) All Liabilities arising under all Station Agreements assigned and transferred to Buyer in accordance with their respective terms all liabilities of Seller shown or reflected on the Base Balance Sheet which are outstanding at the time of the Closing, and all liabilities and obligations incurred by Seller since the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at to the time of extent such Liabilities arise during and relate to any period on or after the Closing, providedClosing Date (excluding, however, that any Liability arising from either (A) the breach of any Station Agreement by reason of its assignment to Buyer without a required consent or (B) any other breach or default by an Emmis Entity upon or prior to Closing under any Station Agreement); and (ii) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Section -------- 2.3 (a) or in Section 2.3(b) or elsewhere in this Agreement, those Liabilities of the Emmis Entities to the ------ -------------- extent, and only to the extent, the amount thereof is included as a credit to Buyer in calculating the Closing Date Adjustments as ultimately determined pursuant to Section 2.10. ------------ (b) Buyer shall not assume or be obligated for any of, and the Emmis Entities shall solely retain, pay, perform, and discharge all of, their respective Liabilities of any and every kind whatsoever, direct or indirect, known or unknown, absolute or contingent, not pay expressly assumed by Buyer under Section 2.3(a) and, notwithstanding -------------- anything to the contrary in Section 2.3(a), none of the following liabilitiesshall be “Assumed Liabilities” for purposes of this -------------- Agreement: (i) Liabilities any foreign, federal, state, county or local income Taxes which arise from the operation of the Station or the Business or the ownership of the Purchased Assets prior to the Closing Date; (ii) any liability or obligation of an Emmis Entity in respect of indebtedness for borrowed money or any intercompany payable of an Emmis Entity or any of its Affiliates; (iii) all liabilities and obligations related to, associated with or arising out of (A) the occupancy, operation, use or control of any of the Real Property prior to the Closing Date or (B) the operation of the Station prior to the Closing Date, in each case incurred by Seller in connection with this Agreement and or imposed as an environmental, health or safety Requirement of Law existing prior to the transactions provided for hereinClosing Date, including, without limitation, counsel and accountant fees, and expenses pertaining any Release or storage of any Contaminants prior to the performance by Seller of its obligations hereunder; Closing Date on, at or from (ii1) Taxes any such real property (as defined in Section 2.08 hereofincluding, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder) of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including any liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (iii) Liabilities of Seller to its dissenting Shareholders, if anyconditions whatsoever on, under or in such real property or (2) any real property or facility owned by a third party at which Contaminants generated by the Massachusetts Business Corporation Lawwere sent prior to the Closing Date; (iv) Liabilities any liabilities or obligations, whenever arising, related to, associated with or arising out of Seller the Employee Plans; (v) any costs and expenses incurred by the Emmis Entities incident to their negotiation and preparation of this Agreement and their performance and compliance with respect to the agreements and conditions contained herein or therein; (vi) any options, warrants, agreements of the Emmis Entities´ liabilities or convertible obligations under this Agreement or other rights to acquire any shares of its capital stock of any classthe Emmis Entities Ancillary Agreements; and (vvii) any and all Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of third-party claims)or related to contracts relating to the Station that are not identified in this Agreement as a Station Agreement, including, without limitation, interest, penalties, reasonable attorney all contracts identified in this Agreement as “Contracts Not Assumed.” All liabilities and accountant fees and all amounts paid in investigation, defense or settlement of any obligations of the foregoing. The liabilities to be assumed by Buyer under this Agreement Emmis Entities which do not constitute Assumed Liabilities are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to herein as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.”

Assumption of Liabilities. Upon At the sale and purchase of the Subject AssetsClosing, Buyer shall assume assume, and agree Buyer agrees to pay or thereafter pay, perform and discharge when due in accordance with due, and indemnify, defend and hold harmless Seller, its Affiliates and all of their respective terms Related Persons from and against, the following liabilities (all items in this Section 1.3 being, collectively, the “Assumed Liabilities”): (a) Except as set forth in Section 1.5, all liabilities and unperformed and unfulfilled obligations of Seller shown under the terms of any Assumed Contract or reflected on Assumed Lease (including all premium finance arrangements of Seller for Assumed Contracts), and the Base Balance Sheet which are outstanding at Buyer’s Cure Amount in connection with the time assignment of the ClosingAssumed Lease and the Assumed Contracts to, and the assumption of the Assumed Lease and the Assumed Contracts by, Buyer; (b) all liabilities and obligations incurred by of Seller since under the date of the Base Balance Sheet in the ordinary course of business and consistent with the terms of this Agreement which are outstanding at the time of the Closing, provided, however, that Buyer shall not assume and shall not pay the following liabilities: (i) Liabilities incurred by Seller in connection with this Agreement Customer Orders and the transactions provided for hereinPurchase Orders (including liabilities in respect of customer deposits, including, without limitation, counsel security deposits and accountant fees, and expenses pertaining to the performance by Seller of its obligations hereunderprepaid items); (iic) all liabilities and obligations for Post-Closing Taxes (as defined in Section 2.08 hereof) of Seller (whether including those relating to periods before or after any Straddle Period); (d) all liabilities and obligations for Transaction Taxes; (e) all Employee Liabilities relating to Transferred Employees (other than the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement Excluded Employee Liabilities); (f) all liabilities and the transactions provided for herein), obligations (including any liability for Taxes under applicable Environmental Laws and other Laws) arising out of or relating to Buyer’s ownership or operation of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liabilityBusiness and the Acquired Assets after the Closing; (iiig) Liabilities of Seller all liabilities and obligations to its dissenting Shareholders, if any, under the Massachusetts Business Corporation Law; (iv) Liabilities of Seller with respect to indemnify and hold harmless any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any classTransferred Employees; and (vh) Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments liabilities and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out obligations of third-party claimsSeller set forth on Schedule 1.3(h), including, without limitation, interest, penalties, reasonable attorney and accountant fees and all amounts paid in investigation, defense or settlement of any of the foregoing. The liabilities to be assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Liabilities,” and the liabilities which are not assumed by Buyer under this Agreement are hereinafter sometimes referred to as the “Excluded Liabilities.” The assumption of said liabilities by any party hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller, and nothing herein shall prevent any party from contesting in good faith with any third party any of said liabilities.