Common use of Assumption of the Liabilities Clause in Contracts

Assumption of the Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, effective as of the Closing, but subject to Section 2.3(b), the Buyer shall assume and become responsible to perform, discharge and pay when due, all of the (i) Liabilities arising out of or relating to the ownership, operation or use of the Transferred Assets or the operation or conduct of the Business from and after the Closing Date but solely to the extent such Liabilities actually arise out of or relate to the ownership, operation or use of the Transferred Assets or the conduct of the Business on or after the Closing Date, and (ii) the Specified Liabilities (collectively, the “Assumed Liabilities”); provided, however, that Taxes shall be Assumed Liabilities only to the extent such Taxes are (i) described in sections (d) and (e) of the definition of Specified Liabilities contained herein, or (ii) Assumed Liabilities pursuant to Section 7.3. (b) Notwithstanding any other provision of this Agreement, the Buyer shall not assume any Excluded Liability, each of which shall be retained and paid, performed and discharged when due by the Sellers and their respective Affiliates. The term “Excluded Liability” means (i) any and all Liabilities of the Sellers and their respective Subsidiaries other than the Assumed Liabilities, including the following (except to the extent constituting Specified Liabilities): (1) all Liabilities arising out of or relating to the ownership, operation or use of the Transferred Assets or the conduct of the Business before the Closing Date; (2) all Indebtedness (other than Indebtedness to the extent actually included in the calculation of Net Working Capital set forth in the Final NWC Statement); (3) all Liabilities to the extent arising out of or relating to any Excluded Asset; (4) all Transaction Expenses; (5) all Taxes of the Sellers and their respective Affiliates that are attributable to taxable periods (or portions thereof) ending on or prior to the Closing Date (determined, as applicable, in accordance with Section 7.3), any income Taxes of Sellers and their respective Affiliates triggered on the sale of the Transferred Assets, and any Transfer Taxes for which Sellers are liable pursuant to Section 7.4; (6) all Liabilities arising out of or relating to the employment of any Business Employee (or any dependent or beneficiary of any Business Employee) by the Sellers and/or their Affiliates, to the extent arising out of events occurring prior to the Closing Date, except to the extent that any such Liabilities are expressly assumed by the Buyer under Article 6; (7) the Liabilities set forth on Schedule 2.3(b)(i)(7); and (8) all Liabilities associated with purchase orders and accounts payable or other commitments to the extent such purchase orders or other commitments contemplate the acquisition of Rejected Inventory; and (ii) all Liabilities to the extent relating to Taxes attributable or imposed on the Business or the Transferred Assets for any period (or portion thereof) ending on or prior to the Closing Date, but excluding (A) Liabilities to the extent relating to Taxes that are Assumed Liabilities pursuant to Section 7.3 and (B) any Transfer Taxes for which Buyer is liable pursuant to Section 7.4. (c) Each of the Buyer’s and the Sellers’ obligations under this Section 2.3 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any Ancillary Agreement or any right or alleged right to indemnification pursuant to Article 13.

Assumption of the Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, effective as of the Closing, but subject to Section 2.3(b), the Buyer shall assume and become responsible to perform, discharge and pay when due, all of the (i) Liabilities arising out of or relating to the ownership, operation or use of the Transferred Assets or the operation or conduct of the Business from and after the Closing Date but solely to the extent such Liabilities actually arise out of or relate to the ownership, operation or use of the Transferred Assets or the conduct of the Business on upon or after the Closing (including all Covered Taxes allocated to Buyer under Section 6.2(a) and other Taxes with respect to the Transferred Assets for taxable periods (or portions thereof) beginning after the Closing Date), and (ii) Liabilities to the Specified extent required to be performed upon or after the Closing under Assumed Contracts (but not including any Liabilities arising out of an Assumed Contract that occurred prior to the Closing in connection with a breach, violation, penalty or similar Liability as a result of an action or omission by Seller or any of its Subsidiaries), (iii) Liabilities to the extent required to be performed upon or after the Closing under Shared Contracts to the extent related to the Wireless Business (but not including any Liabilities arising out of a Shared Contract that occurred prior to the Closing in connection with a breach, violation, penalty or similar Liability as a result of an action or omission by Seller or any of its Subsidiaries) and (iv) Liabilities expressly assumed by, retained by or agreed to be performed by Buyer or any of its Affiliates pursuant to the terms of this Agreement or any Transaction Document, including pursuant to the second to last sentence of Section 5.12(f) (collectively, the “Assumed Liabilities”); provided, however, that Taxes shall be Assumed Liabilities only to the extent such Taxes are (i) described in sections (d) and (e) of the definition of Specified Liabilities contained herein, or (ii) Assumed Liabilities pursuant to Section 7.3. (b) Notwithstanding any anything to the contrary set forth in Section 2.3(a), all Liabilities (including the Excluded Employee Liabilities), other provision than those explicitly assumed by Buyer in Section 2.3(a) and the second to last sentence of this AgreementSection 5.12(f), the Buyer shall not assume any are “Excluded Liability, Liabilities,” each of which shall be retained remain the obligations and paid, performed responsibilities of Seller and discharged when due by the Sellers and their respective Affiliates. The term “Excluded Liability” means (i) any and all Liabilities of the Sellers and their respective Subsidiaries other than the Assumed Liabilities, including the following (except to the extent constituting Specified Liabilities): (1) all Liabilities arising out of or relating to the ownership, operation or use of the Transferred Assets or the conduct of the Business before the Closing Date; (2) all Indebtedness (other than Indebtedness to the extent actually included in the calculation of Net Working Capital set forth in the Final NWC Statement); (3) all Liabilities to the extent arising out of or relating to any Excluded Asset; (4) all Transaction Expenses; (5) all Taxes of the Sellers and their respective Affiliates that are attributable to taxable periods (or portions thereof) ending on or prior to the Closing Date (determinedits Subsidiaries, as applicable. For the avoidance of doubt, in accordance with Section 7.3), any income Taxes of Sellers and their respective Affiliates triggered on the sale of the Transferred Assets, and any Transfer Taxes for which Sellers are liable pursuant to Section 7.4; (6) all Liabilities arising out of or relating to the employment of any Business Employee (or any dependent or beneficiary of any Business Employee) by the Sellers and/or their Affiliates, to the extent arising out of events occurring prior to the Closing Date, except to the extent that any such Liabilities are expressly assumed by the Buyer under Article 6; (7) the Liabilities set forth on Schedule 2.3(b)(i)(7); and (8) all Liabilities associated with purchase orders and accounts payable or other commitments to Section 2.3(b) of the extent such purchase orders or other commitments contemplate the acquisition of Rejected Inventory; and (ii) all Liabilities to the extent relating to Taxes attributable or imposed on the Business or the Transferred Assets for any period (or portion thereof) ending on or prior to the Closing Date, but excluding (A) Liabilities to the extent relating to Taxes that are Assumed Liabilities pursuant to Section 7.3 and (B) any Transfer Taxes for which Buyer is liable pursuant to Section 7.4Disclosure Schedules shall be Excluded Liabilities. (c) Each Except as may be recoverable by Buyer under the RWI Policy and subject to Section 11.5(b), each of the Buyer’s and the Sellers’ Seller’s obligations under this Section 2.3 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any Ancillary Agreement or any right or alleged right to indemnification pursuant to Article 13Transaction Document.