Common use of Excluded Liabilities Clause in Contracts

Excluded Liabilities. Purchaser shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Except for the Assumed Liabilities, Purchaser shall not assume assume, and shall not be responsible have no liability for, any Liabilities of Seller of any kind, character or description, whether accrued, absolute, contingent or otherwise, it being understood that Purchaser is expressly disclaiming any express or implied assumption of any Liabilities of Seller (other than Assumed Liabilities) including, without limitation, (a) any Liability of Seller and any claims by any stockholder of Seller arising out of or relating to the execution, delivery or performance of this Agreement and the Transactions, (b) any Liability of Seller to any current or former employee or consultant of Seller, (c) any Excluded Taxes, (d) any Liabilities arising out of or relating to the prosecution, ownership, operation, maintenance, sale, lease or use of the Transferred Assets or the operation of the Business prior to the Closing except for the Assumed Liabilities, (e) all wages, salaries and other compensation and employee benefits (including any severance pay, perform notice pay, insurance, supplemental pension, deferred compensation, “stay” or discharge other similar incentive bonuses, change-in-control bonuses (or other bonuses or compensation related in any way to the execution, delivery or performance of this Agreement), retirement and any other benefits, premiums, claims and related costs) to any of the following Liabilities employees, former employees (including the former employees of Seller’s U.K. Subsidiary) or obligations retirees of Seller with respect to services performed for, or Contracts entered into with, Seller prior to the Closing, and (f) the Liabilities of Seller set forth on Schedule 1.5 (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior ). Notwithstanding anything to the Closing Date; (ii) contrary herein, it is understood and agreed that Seller shall not be responsible for any liability arising out of compensation, benefits or other amounts payable to any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made Service Provider pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer TaxesContract entered into by TheMaven, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, Purchaser or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of their Affiliates that becomes effective at or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., following the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateClosing.

Excluded Liabilities. Purchaser Except as and to the limited extent specifically set forth in Section 2.2(a), Buyer is not assuming any Liabilities of Parent or the Companies (including Liabilities related to otherwise Assumed Liabilities arising prior to the Closing) and all such Liabilities shall not assume be and shall not be responsible to pay, perform or discharge any remain solely the responsibility of Parent and the following Liabilities or obligations of Seller Companies (collectively, the “Excluded Liabilities”): ). Parent or the applicable Company shall pay, perform and discharge, as and when due, all of the Excluded Liabilities. Without limiting the generality of this Section 2.2(b), all of the following shall be Excluded Liabilities: (i) all Indebtedness; (ii) all Transaction Expenses; (iii) all Film Equipment Expenses to the extent not included in the calculation of the Final Cash Purchase Price; (iv) all Pre-Closing Taxes; (v) all Environmental Liabilities; (vi) all Liabilities relating related to or arising out of any Pending Litigation or Excluded Asset; (vii) all Liabilities related to or arising out of the ownership or leasing of the Purchased Property prior to the Closing DateNCM Buyout, including all NCM Buyout Obligations; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect payment, expense or fee (including any bonus or other Compensation) that accrues or becomes payable by Parent, any Company or any of their respective Affiliates to any Employee current or former employee of SellerParent or any of its Affiliates, any Governmental Entity or any other Person as a result of, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e.in connection with, the liability is imposed by the Government entity); (x) any liability execution and delivery of Seller under this Agreement or any other document executed in connection with Ancillary Document or the consummation of the transactions contemplated by this Agreement; and (xi) Agreement or any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateAncillary Document.

Excluded Liabilities. Purchaser shall Notwithstanding anything to the contrary contained in this Agreement or any documents executed in connection with the Transactions, and regardless of whether such Obligations are disclosed in the Schedules or otherwise, except as expressly set forth in Section 1.3 or this Section 1.4, Buyer will not assume and shall not or in any way be responsible to pay, perform or discharge for any Obligations of the following Liabilities Seller Parties or obligations of Seller the Business, whether known or unknown, asserted or unasserted, accrued or unaccrued, absolute or contingent, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise (collectively, the “Excluded Liabilities”): ), including, without limitation, any: (ia) Liabilities relating indebtedness for borrowed money of the Company (“Indebtedness”); (b) Obligations owed by the Company to any Seller Party or any Affiliates thereof; (c) Obligations related to or arising out of the ownership or leasing of the Purchased Property prior to the Closing DateExcluded Assets; (iid) any liability arising out of any Action pending as of the Closing DateSeller Taxes, subject to Section 6.1; (iiie) Liabilities for Taxes relating Seller Expenses; (f) regardless of whether such Obligation is disclosed in the Schedules or otherwise, Obligations related to or arising out of the Focus Factor operation of the Business accruing or ownership of the Purchased Assets on or prior to the Closing Date (including, without limitation, accrued sales taxes)Effective Time; (ivg) liabilities for Taxes Obligations related to any insurance policies of the SellerCompany; (h) Obligations of the Company related to Environmental Laws; or (i) except for the COBRA obligations described in Section 1.3(e), whether Obligations under Plans or not for severance, other employee benefits or other moneys or damages (including claims under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar law) from or on behalf of any of the employees of the Company who are employed by the Company at any time as of or prior to the Effective Time (or from any federal, state or local governmental agency or authority on behalf of such employees or relating to such claims) involving an alleged employment loss or arising termination as of or prior to the Effective Time, including those which are based upon or arise out of the Focus Factor business execution and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes delivery of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with of the transactions contemplated hereby (whether or not such employees are hired by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateBuyer).

Excluded Liabilities. Purchaser Notwithstanding any provision in this Agreement or any other writing to the contrary, FRP is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Pennzoil (or any predecessor owner of all or part of the Business and the Purchased Assets) of whatever nature, whether presently in existence or arising hereafter and whether accrued, contingent, absolute, determined, determinable or otherwise, actual or potential, known or unknown. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Pennzoil (all such liabilities and obligations not assume and shall not be responsible being assumed being herein referred to payas the "EXCLUDED LIABILITIES"), perform or discharge and, without in any way limiting this Section 2.4, none of the following shall be Assumed Liabilities for purposes of this Agreement: (a) all accounts payable attributable to the operation of the Business prior to the Closing Date and all obligations with respect to any Debt; (b) any obligation or liability for Tax arising from or with respect to the Purchased Assets or the operations of the Business which is incurred in or attributable to the Pre-Closing Tax Period; (c) any liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to employee benefits or arising out of compensation arrangements with respect to any Pennzoil employee who is not a Transferred Employee or with respect to any Transferred Employee for any period on or prior to the ownership Transfer Date for such Transferred Employee; (d) except as provided in Sections 2.3(e) and 2.3(f), any Environmental Liability; (e) any liability or leasing obligation relating to an Excluded Asset; and (f) subject to Section 11.2, any other obligation or liability associated with the Business or the operation of the Purchased Property Assets on or prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser shall not assume Other than the Assumed Liabilities, all liabilities, liens and shall not be responsible to pay, perform or discharge any of the following Liabilities or other obligations of Seller or any affiliates of Seller relating to the Business or the Purchased Assets arising prior to the Closing Date (collectively, the “Excluded Liabilities”): ), shall remain the sole responsibility of and shall be retained, fully paid, fully performed and fully discharged solely by the Seller. Excluded Liabilities shall include, without limitation: any debts, liabilities or obligations not specifically listed in Schedule 1.2(a) hereof, including (i) Liabilities relating to or arising out any liability of the ownership or leasing Seller for income, transfer, sales, use, and all other taxes arising in connection with the consummation of the transactions contemplated hereby (including any income taxes arising because the Seller is transferring the Purchased Property prior to the Closing Date; Assets), whether imposed on Seller as a matter of law, under this Agreement or otherwise, (ii) any liability of the Seller for taxes, including taxes of any person other than the Seller, (iii) any liability of Seller with respect to any indebtedness for borrowed money, (iv) any liability of Seller arising out of any Action threatened or pending as of the Closing Date; (iii) Liabilities for Taxes relating to litigation or arising out of the Focus Factor Business accruing prior to the Closing Date (includingother claim, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes liability, whether arising by operation of law, contract, past custom or otherwise, for unemployment compensation benefits, pension benefits, salaries, wages, bonuses, incentive compensation, sick leave, severance or termination pay, vacation and other forms of compensation or any other form of employee benefit plan (including the health benefits payable reflected on the Seller’s balance sheet), agreement (including employment agreements), arrangement or commitment payable to or for the benefit of any nature; current or former officers, directors and other employees and independent contractors of Seller, (vi) one-half any liabilities of any Seller to the Transfer TaxesStockholders or any affiliates or current or former stockholders, if applicable; members or other equity owners of any Seller, (vii) any liability for costs and expenses of the Seller having to do in connection with a business other than the Focus Factor Business; this Agreement or any transactions contemplated hereby, (viii) any liability with respect to negative cash or book balances or any Employee or former employee of Sellerintercompany debt by and between, or by and among, Seller and any consultant retained by Seller; affiliate of Seller and (ix) any liability environmental liability. All Excluded Liabilities shall be the responsibility of Seller, and Seller and the Stockholder agree to indemnify and hold the Buyer harmless against any Governmental entity arising out of Excluded Liabilities, debts, obligations, claims or resulting from Seller’s compliance or noncompliance with any lawdamages therefrom, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; costs and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Dateexpenses.

Excluded Liabilities. Purchaser Notwithstanding anything contained herein to the contrary, Assignee shall not assume and shall not assume, or cause to be assumed, or be deemed to have assumed or caused to have assumed or be liable or responsible to pay, perform or discharge for any of the following Liabilities liabilities or obligations of Seller (collectivelywhether known or unknown, fixed, absolute, matured, unmatured, accrued or contingent, now existing or arising after the date hereof), other than the Assumed Liabilities (such liabilities and obligations not assumed, the “Excluded Liabilities”): ). For the avoidance of doubt, Excluded Liabilities (x) shall include but not be limited to (i) Liabilities relating to or any claims by Hired Employees arising out of the ownership or leasing of the Purchased Property from their employment with any Brand Company prior to the Closing Date; , (ii) any liability arising out liabilities and obligations of any Action pending as of the Closing Date; Brand Company that do not arise from and are not related to any Assigned Asset, (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (includingExcluded Taxes, without limitation, accrued sales taxes); (iv) any liabilities for Taxes and obligations of any Brand Company to the extent based upon a theory of successor liability, including any successor liability claims with respect to employees of the SellerBrand Companies (provided, whether or that this clause (iv) shall not relating apply in any respect to or arising out Assignee’s assumption of the Focus Factor business and whether or not incurred prior to the Closing dateAssumed Liabilities), including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of liabilities and obligations under any nature; agreement, contract or license relating to any event occurring prior to Closing and (vi) one-half of the Transfer Taxesany claims by, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect liabilities or obligations to any Employee employee or former employee of Sellerany of the Brand Companies, other than Hired Employees, under the federal Worker Adjustment and Retraining Notification Act of 1988, as amended, or under any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of state or resulting from Seller’s compliance local plant closing or noncompliance with any mass layoff law, regulation(y) but, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., notwithstanding the liability is imposed by the Government entity); foregoing clause (x) ), shall exclude any liability of Seller under this Agreement or any other document executed in connection with liabilities and obligations assumed by Assignee pursuant to the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateGaiam-FFL APA.

Excluded Liabilities. Purchaser Except for the Assumed Liabilities specifically set forth in Section 2.2 above, Buyer shall not assume or otherwise become responsible for, and shall not be responsible the Assumed Liabilities expressly exclude, any debt, liability, duty or obligation, whether known or unknown, fixed or contingent, of Seller including any Benefits Liabilities and liabilities or obligations related to pay, perform the Acquired Assets or discharge any the Business which are outstanding or unpaid as of the following Liabilities or obligations of Seller date hereof (collectively, the “Excluded Liabilities”): ). Without limiting the foregoing, the term “Excluded Liabilities” shall include all liabilities, including any liabilities for Taxes, arising from or related to: (i) Liabilities relating to Seller’s operations, whenever arising or arising out incurred, or Seller’s ownership of the ownership or leasing of the Purchased Property prior to Products and Acquired Assets through the Closing Date; (ii) any liability arising out Seller’s termination of any Action pending as of Contracts relating to the Closing DateBusiness or otherwise; (iii) Liabilities for Taxes relating to any Designated Employee hired by Buyer that accrues or arising out arises as of the Focus Factor Business accruing or prior to the Closing Date (includingother than Accrued Vacation Pay and the obligations of Parent pursuant to Parent’s written offers of employment referenced in Section 5.9), without limitationor any of Seller’s other agents, accrued sales taxes); (iv) liabilities for Taxes consultants, independent contractors, employees or former employees, whenever arising, in each case including WARN Act, change of the Sellercontrol, workers’ compensation, severance, salary, bonuses, COBRA benefits or other benefits or payments due under any Employee Plan, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do such employees shall accept employment with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed Buyer in connection with the transactions contemplated by this Agreementhereby; (iv) any Benefits Liabilities; (v) any litigation matter or threat thereof arising on or prior to the Closing Date involving Seller and any current or former customer, lessor, shareholder, officer, employee, consultant, director or affiliate thereof, including Xxxxxx x. Xxxx-L Company, Inc., Civ. No. 00-S-1181, D. Colo., and all claims, disputes and causes of action among Seller and Xxxxxx X. Xxxxx, XX Enterprises, Xxxxx X. Xxxxxxx, Xxx X. Xxxxx and Xxxxx X. Xxxxxx, (vi) any indemnification obligation of Seller to any affiliate or third party (other than indemnification obligations set forth in the Transferred Contracts), (vii) any real estate lease or equipment lease, including the Lease Agreements, other than as contemplated under the Real Property Subleases, (viii) Seller’s Retained Environmental Liabilities, (ix) any guaranty or insurance policy of any type, including any life or health insurance or key man insurance policies on Xxxxxx Xxxxx or any other Person, (x) any sales, use and other transfer taxes, including any taxes arising from the transactions contemplated hereby (except as otherwise provided in Section 2.8 hereof), (xi) any liability and all fees and expenses incurred by Seller in connection with this Agreement and the transactions contemplated hereby, (xii) any Tax liabilities incurred by Seller prior to the Closing, (xiii) the Asvan Payment (as defined in Section 5.27 hereof), or (xiv) the shareholder derivative action (Case No. 00-CV-6001) filed, purportedly on behalf of Seller based on the Seller’s actions , in Xxxxxxxx Xxxxx, Xxxx xxx Xxxxxx xx Xxxxxx against Xxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxx Xxxx and the Seller, the appeal filed by the derivative plaintiff with the Colorado Court of Appeals with respect to same (Case No. 02-CA-1901) or omissions occurring after the Closing Dateany related proceeding.

Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Purchaser shall have no obligation and is not assume assuming, and the Company and/or VCGH shall not be responsible to retain, pay, perform or discharge any perform, defend and discharge, all of the following Liabilities or liabilities and obligations of Seller every kind whatsoever related or connected to the Purchased Assets or the business of Jaguar’s Gold Club arising or accruing prior to the Closing Date, whether disclosed or undisclosed, known or unknown on the Closing Date, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether liabilities for taxes, liabilities of creditors, liabilities arising under any profit sharing, pension or other benefit under any plan of the Company, liabilities to any Governmental Agency (as hereinafter defined) or third parties, liabilities assumed or incurred by the Company by operation of law or otherwise (collectively, the “Excluded Liabilities”): ), including, but not limited to, (i) Liabilities relating to contractual liabilities arising from Jaguar’s Gold Club’s business or arising out of the ownership or leasing of the Purchased Property Assets prior to the Closing Date; , and (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable taxes owing by the Seller resulting from payments made pursuant Company and/or VCGH, including but not limited to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this ad valorem taxes, including real estate and personal property taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to the Old Lease Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xiy) amounts accessed under the Texas Patron Tax, occurring before Closing, or whether related to the business of Jaguar’s Gold Club, the Purchased Assets or otherwise and any liability of Seller based liens on Seller’s actions or omissions occurring after the Closing DatePurchased Assets relating to any such taxes.

Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Purchaser shall have no obligation and is not assume assuming, and the Company and/or VCGH shall not be responsible to retain, pay, perform or discharge any perform, defend and discharge, all of the following Liabilities or liabilities and obligations of Seller every kind whatsoever related or connected to the Purchased Assets or the business of Schiek’s Palace arising or accruing prior to the Closing Date, whether disclosed or undisclosed, known or unknown on the Closing Date, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether liabilities for taxes, liabilities of creditors, liabilities arising under any profit sharing, pension or other benefit under any plan of the Company, liabilities to any Governmental Agency (as hereinafter defined) or third parties, liabilities assumed or incurred by the Company by operation of law or otherwise (collectively, the “Excluded Liabilities”): ), including, but not limited to, (i) Liabilities relating to contractual liabilities arising from Schiek’s Palace’s business or arising out of the ownership or leasing of the Purchased Property Assets prior to the Closing Date; , and (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable taxes owing by the Seller resulting from payments made pursuant Company and/or VCGH, including but not limited to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this ad valorem taxes, including real estate and personal property taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to the Lease Agreement or and (y) any other document executed in connection with taxes, whether related to the transactions contemplated by this Agreement; business of Schiek’s Palace, the Purchased Assets or otherwise and (xi) any liability of Seller based liens on Seller’s actions or omissions occurring after the Closing DatePurchased Assets relating to any such taxes.

Excluded Liabilities. Purchaser shall Buyer will not assume and shall not or be responsible to pay, perform liable for any Liabilities of Seller or discharge any of its Affiliates other than the following Assumed Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): ). Without limiting the generality of the foregoing, Buyer will not assume or be liable for any of the following Liabilities, which shall constitute “Excluded Liabilities” hereunder: (a) the Account Liabilities; (b) Excluded Taxes; (c) Liabilities arising under any Contracts of Seller or its Affiliates, whether relating to the Accounts or otherwise, whenever incurred or accrued; (d) Liabilities of whatever kind and nature assessed in any Proceeding to the extent relating to the Accounts or the Account Assets prior to the Transactions, including the Custodial Transfer; (e) Liabilities relating to any breach or alleged breach of the Account Agreements in connection with the Transactions (including, for the avoidance of doubt, the Custodial Transfer); (f) Liabilities relating to any Employees of Seller or its Affiliates, including, without limitation, any Liabilities associated with any claims for wages, salary or other benefits, bonuses, commissions, overtime pay, accrued vacation or holiday pay, workers’ compensation, severance, retention, termination or other payments; (g) any Liabilities arising under or in connection with any Benefit Plan, including any Controlled Group Liability of Seller or any ERISA Affiliate; (h) fifty percent (50%) of any Liabilities for Transfer Taxes in connection with this Agreement and the Transactions; (i) any Liability relating to the CDB Account Engagements arising on or prior to the Plan Year End applicable to such CDB Accounts; (j) any Liability for which Buyer has a right to indemnification pursuant to Section 8.2; and (k) all Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateExcluded Assets.

Excluded Liabilities. Purchaser shall Notwithstanding anything to the contrary contained in this Agreement or in any Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents or on any Schedule or Exhibit hereto or thereto other than the New LLC Assumed Liabilities (as defined in this Section below), the New LLC will not assume and shall not be responsible assume, agree to pay, perform and discharge or discharge in any of the following Liabilities way be responsible for any debts, liabilities or obligations of Seller (collectivelythe Business, the “Excluded Liabilities”): (i) Liabilities Seller, Shareholders or any of their respective Affiliates of any kind or nature whatsoever, arising out of, relating to to, resulting from, or caused by any transaction, status, event, condition, occurrence or situation relating to, arising out of or in connection with the ownership Business, the Assets, Seller or leasing of the Purchased Property any Shareholder existing, arising or occurring on or prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable liabilities or obligations relating to or arising from the Excluded Assets (the “Excluded Liabilities”). Notwithstanding the foregoing, Seller will contribute into New LLC, and New LLC will assume and thereafter pay and fully satisfy when due, all liabilities and obligations: (a) which arose prior to the New LLC Asset Transfer and represent normal and current trade payables incurred by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreementoperation of the Business in the ordinary course of business, consistent with past custom and practice (and which are not delinquent), including, without limitation, those specifically set forth on Schedule 1.4(a) (“Accounts Payable”); (b) the other accrued liabilities of Seller which have been incurred in the ordinary course of business, consistent with past custom and practice and which are specifically set forth on Schedule 1.4(b) (“Accrued Liabilities”); and (xic) first arising after the New LLC Asset Transfer under any Assumed Contract (except for any liability or obligation arising from any breach or failure to perform under any of Seller based on Seller’s actions or omissions occurring after the foregoing prior to the Closing Date) (all such liabilities and obligations to be so contributed into, and assumed by, the New LLC being collectively referred to herein as the “New LLC Assumed Liabilities”).

Excluded Liabilities. Purchaser Notwithstanding anything in this Agreement to the contrary, unless express or implied by the context herein, or as otherwise limited under Section 6.5 or elsewhere in this Agreement, and except for the Assumed Liabilities set forth in Section 1.3: (a) Buyer, the Merger Subsidiary and Parent shall not not, directly or indirectly, assume and shall not be responsible to payor become liable for any other debt, perform obligations, indebtedness or discharge any of the following Liabilities other liabilities or obligations of Seller or any of the Stockholders, whether or not such liabilities are required to be set forth on a Seller balance sheet prepared in accordance with GAAP, arise under any employment agreement or other Contract or writing (collectivelyother than the specific Assumed Contracts referred to in Sections 1.1(e) and identified on the schedule thereto and the transactions contemplated in and by this Agreement, including without limitation those agreements and documents identified and referenced in Section 1.7) or result from any contingencies or claims of any third person, firm, entity or Governmental Entity or regulatory authority; and (b) Seller or the “Excluded Liabilities”): Stockholder, as the case may be, shall remain solely responsible for all liabilities and obligations not assumed by Buyer under this Agreement as Assumed Liabilities or otherwise undertaken by Buyer under this Agreement. For the avoidance of doubt, only to the extent arising from events that have occurred prior to Closing, and subject to the requirement that written notice of any such claims that are received by Buyer be tendered within 30 days of receipt by Buyer to the Seller and the Stockholders, (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior subject to the last sentence of this Section 1.4, any and all VAT or other Pre-Closing Date; Tax obligations shall be retained by Stockholders and the Seller pursuant to Section 4.11 hereof, and (ii) any liability arising out of fines, penalties, debts or liabilities incurred by Seller, DiscCo or any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed Stockholders in connection with the transactions contemplated failure by the Company or DiscCo prior to Closing to comply with any requirements or obligations to register with applicable governmental agencies or authorities, certain of the products sold by Seller, Disco or any of their Subsidiaries, directly or through distributors or fulfillment centers to retail consumers located in countries under the jurisdiction of such governmental agencies or authorities, as determined, claimed and assessed by such applicable governmental agencies or authorities, shall for all purposes be deemed to be Excluded Liabilities. Notwithstanding the foregoing, any tax consequences of the Merger, as defined in Section 1.7, or any related liabilities, whether to DiscCo, to Xxxxxxx as the sole Stockholder of DiscCo, or to Xxxxxxxx as a former Stockholder of DiscCo, arising as a result of the Merger failing to qualify as a tax-free merger under Section 368 and related sections of the Internal Revenue Code, thereby resulting in taxes to DiscCo, Xxxxxxx or Xxxxxxxx, shall not, for the purposes of this Agreement; Agreement or the Merger, be considered a Pre-Closing Tax obligation, shall be excluded from the Stockholders’ responsibility under Section 4.11, and (xi) any liability shall remain covered by the tax indemnity agreement by Buyer and Buyer’s Affiliates in favor of Seller based on Seller’s actions or omissions occurring after the Closing DateXxxxxxx and Xxxxxxxx.”

Excluded Liabilities. Purchaser shall Notwithstanding anything herein to the contrary, Buyer will not assume and shall will not be responsible obligated to assume or be obliged to pay, perform or otherwise discharge or in any other way be liable or responsible for any Liability whatsoever of Seller or any of its Subsidiaries, whether existing on the following Closing Date or arising thereafter, other than the Assumed Liabilities or obligations of Seller (such Liabilities, collectively, the “Excluded Liabilities”): ). Without limiting the foregoing, Buyer shall not be obligated to assume, and does not assume, and hereby disclaims all the Excluded Liabilities, which for the avoidance of doubt, include (a) all Liabilities arising, whether prior to, at or after the Closing, under (i) any Multiemployer Plan (including any associated Withdrawal Liability), (ii) all Seller Benefit Plans (including any Pension Plan and any OPEB) other than any Assumed Plan Liabilities or (iii) any Collective Bargaining Agreement that has expired or been rejected by Buyer, (b) any and all Liabilities for Taxes (i) of or imposed on Seller or any of its Subsidiaries (or any Affiliate thereof) or (ii) related or attributable to the Assets or the Business for any Pre-Closing Tax Period, (other than real estate and personal property Taxes included in Acquired Prepayments or Taxes included in the Current Liabilities), (c) all Liabilities relating to the Assets or the Business arising out of from or relating to any Environmental, Health and Safety Laws or the ownership presence or leasing of Release of, or exposure to, any Hazardous Substance at, on, under or migrating from any Assets, to the Purchased Property extent arising or attributable to any period on or prior to the Closing Date; (ii) including any liability arising out of any Action pending as Proceedings or Orders in respect of the Closing Date; foregoing (iii) Liabilities for Taxes and including without limitation all fines, penalties or other obligations arising from or relating to any violation or alleged violation of Environmental, Health and Safety Laws first occurring or arising out of the Focus Factor Business accruing prior to the Closing Date (includingClosing), without limitationor otherwise relating to any properties at any time owned, accrued sales taxes); (iv) liabilities for Taxes leased or operated in respect of the SellerBusiness that are not included within the definition of Assets, whether or not (d) all Cure Costs and (e) all Liabilities relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing dateExcluded Assets, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Dateincluding Customer Deductions.

Excluded Liabilities. Purchaser Except as expressly set forth in Section 1(a) above, Mentor shall not assume and does not hereby assume, pay, perform, defend or discharge any, and SiTech does and shall not be responsible to hereby solelyretain, pay, perform or discharge any perform, defend and discharge, all of the following Liabilities or SiTech's liabilitiesand obligations of Seller (collectivelyany and every kind whatsoever, the “Excluded Liabilities”): whether disclosed, undisclosed, direct, indirect, absolute, contingent, secured, unsecured, accrued or otherwise, whether known or unknown, including but not limited to: (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date[Intentionally Omitted]; (ii) any liability arising out of any Action pending as specifically excluding the tax obligations described in Section 1 (a)(iv) above, all income, withholding, or other taxes or fees resulting from the transfer of the Closing DateAssets and Business or otherwise; (iii) Liabilities for Taxes relating any obligations or liabilities of SiTech to or arising out of the Focus Factor Business accruing prior its employees, including but not limited to the Closing Date (including, without limitationaccrued but unpaid payroll, accrued sales taxes)obligations or liabilities under any employment or consulting agreements, employee's beneficial interests or options to purchase beneficial interests in SiTech, employee benefit plans or pension, profit-sharing or retirement plans or vacation arrangements; (iv) any obligations or liabilities for Taxes under the Consolidated Omnibus Budget Reconciliation Act of the Seller1985, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreementas amended ("COBRA"); (v) any deferred Taxes liabilities or expenses of any nature; SiTech, including brokers', attorneys' and other professionals' fees incurred in negotiating, executing and completing SiTech's obligations under the Agreement: (vi) one-half of the Transfer Taxesany obligations or liabilities relating to any products alleged to have been manufactured, if applicableor sold by SiTech and alleged to have been defective, improperly designed or manufactured or improperly labeled; and (vii) any liability obligations or liabilities arising under any Environmental Law (as defined in Section 3.15 of Seller having to do with a business other than the Focus Factor Business; (viiiAgreement) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with law (collectively, the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date"Excluded Liabilities").

Excluded Liabilities. Purchaser shall Notwithstanding any provision in this Agreement or any other writing to the contrary, the Buyer is not assume and shall not be responsible to payassuming any Liability of any Seller of whatever nature, perform whether presently in existence or discharge any arising hereafter, except for the Liabilities described in Exhibit B, which Buyer hereby assumes effective as of the following Closing, defined below. Except for the Liabilities or obligations described in Exhibit B, all such Liabilities shall be retained by and remain Liabilities of the applicable Seller (collectively, all such Liabilities not being assumed being herein referred to as the “Excluded Liabilities”): ). The Excluded Liabilities shall include, without limitation, (i) Liabilities any Liability of any Seller for or on account of income, transfer, sales, use, state or other Taxes (including transfer, documentary, sales, use stamp, registration, any conveyance fees or recording charges or any other Tax incurred in connection with the Contemplated Transactions), (ii) any Liability of any Seller for the unpaid Taxes of any other Person as a transferee or successor, by contract, or otherwise, (iii) any Liability under any employee benefit plan, (iv) Liability for any Taxes incurred by any Seller relating to or arising out of the ownership or leasing of the Purchased Property any period prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (includingClosing, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes Liability in respect of any nature; Debt of any Seller, (vi) one-half of the Transfer Taxesany contingent liabilities, if applicable; (vii) any liability Liability of Seller having a Company to do with an Affiliate of a business other than the Focus Factor Business; Company or to its stockholders or owners, (viii) any liability with respect to any Employee or former employee Liabilities of Sellera Company’s Affiliates, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any lawCompany Employee Plan, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability Liability relating to compliance with Legal Requirements by a Company, employee Liabilities and breaches of any of the Contracts prior to the Closing, (xi) Liabilities in respect of Seller under this Agreement or any other document executed in connection with Transaction Expenses, (xii) the transactions contemplated by this AgreementExcluded Assets; and (xixiii) any liability Liabilities relating to account receivables relating to the pre-Closing operations of Seller based on Seller’s actions or omissions occurring after the Closing DateBusiness.

Excluded Liabilities. Purchaser Other than as set forth in Section 1.03, Buyer shall not assume or become liable for (and nothing contained in this Agreement shall not be responsible to payconstrued as an assumption by Buyer of) the payment of any debts, perform liabilities, losses, accounts payable, bank indebtedness, mortgages, real or discharge any of the following Liabilities personal property leases or other liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether the same are known or not relating to unknown, now existing or arising out hereafter arising, of the Focus Factor business and whatever nature or character, whether absolute or not incurred prior to the Closing datecontingent, liquidated or disputed, including, without limitation, any Taxes payable and all liabilities arising from, or related to, the ownership, operation and maintenance of the Business or the Assets (including any intellectual property) prior to the Effective Time. Seller shall be responsible for, and the Excluded Liabilities shall include all of the liabilities, obligations and undertakings of Seller not expressly assumed by the Seller resulting from payments made Buyer pursuant to this Agreement; Section 1.03 hereof, and such liabilities, obligations and undertakings shall remain the sole liabilities, obligations and undertakings of Seller. Without limiting the generality of the foregoing, Seller shall be responsible for, and the Excluded Liabilities shall include, (i) all of Seller’s deferred compensation obligations including any notes payable to any Owner, (ii) the obligations and liabilities of Seller under the Lease Agreement between Source Alpharetta, Inc. and Seller, dated as of December, 2003, (iii) the Agreement of Amendment and Release, dated December 26, 2002, among Seller, IM Comet, Inc., HMTS and Profitmark, (iv) the Agreement and Release, dated December 23, 2004 among Seller, HMTS and Profitmark, HealthDataInsights, Inc. and Healthcare Solutions, LLC and (v) any deferred Taxes of any nature; (vi) one-half all of the Transfer Taxesliabilities for any Taxes imposed by any Tax Authority pursuant to any Law applicable to the sale, if applicable; (vii) any liability transfer and conveyance of the Assets and all of the liabilities of Seller having to do with a business for any other Taxes imposed by any Tax Authority other than payroll Taxes to the Focus Factor Business; (viii) any liability with respect extent included in Employee Accruals pursuant to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entitySection 1.03(b); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser (a) Buyer shall not assume and shall not be responsible assume, or take the Purchased Assets subject to, any liability or obligation of any kind or nature (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to pay, perform or discharge any of the following Liabilities or obligations of Seller become due) (collectivelya “Liability”) (such Liabilities, the “Excluded Liabilities”): ). Excluded Liabilities include, without limitation, the following: (i) Liabilities trade and accrued Liabilities; (ii) bank debt, other secured debt, including capital lease obligations, and debts to limited liability company members and related parties; (iii) taxes, including payroll taxes, sales taxes, withholding and all other taxes relating to or the period during which Seller owned and operated the Purchased Assets; (iv) claims against, and Liabilities of, Seller arising out of any actions or inactions of Seller (or any predecessor of Seller) relating to the ownership or leasing of period during which Seller owned and operated the Purchased Property prior Assets; (v) Liabilities to Seller’s current employees, including compensation, severance and benefits through the Closing Date or otherwise triggered by the Closing; (vi) any Liabilities arising under the Leases through the Closing Date; (iivii) any liability Liabilities arising out of any Action pending as of under the Transferred Contracts through the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (vviii) any deferred Taxes of any natureLiabilities pertaining to Seller’s former officers, directors, members, managers, owners, employees, and agents; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; and (viii) any liability with respect to any Employee or former employee and all other Liabilities whatsoever of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser shall not assume Other than the Assumed Liabilities, all liabilities, liens and shall not be responsible to pay, perform or discharge any of the following Liabilities or other obligations of Seller or any affiliates of Seller relating to the Business or the Purchased Assets arising prior to the Closing Date (collectively, the “Excluded Liabilities”): ), shall remain the sole responsibility of and shall be retained, fully paid, fully performed and fully discharged solely by the Seller. Excluded Liabilities shall include, without limitation: any debts, liabilities or obligations not specifically listed in Schedule 1.2(a) hereof, including (i) Liabilities relating to or arising out any liability of the ownership or leasing Seller for income, transfer, sales, use, and all other taxes arising in connection with the consummation of the transactions contemplated hereby (including any income taxes arising because the Seller is transferring the Purchased Property prior to the Closing Date; Assets), whether imposed on Seller as a matter of law, under this Agreement or otherwise, (ii) any liability of the Seller for taxes, including taxes of any person other than the Seller, (iii) any liability of Seller with respect to any indebtedness for borrowed money or credit card payables, (iv) any liability of Seller arising out of any Action threatened or pending as of the Closing Date; (iii) Liabilities for Taxes relating to litigation or arising out of the Focus Factor Business accruing prior to the Closing Date (includingother claim, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes liability, whether arising by operation of law, contract, past custom or otherwise, for unemployment compensation benefits, pension benefits, salaries, wages, bonuses, incentive compensation, sick leave, severance or termination pay, vacation and other forms of compensation or any other form of employee benefit plan (including the health benefits payable reflected on the Seller’s balance sheet), agreement (including employment agreements), arrangement or commitment payable to or for the benefit of any nature; current or former officers, directors and other employees and independent contractors of Seller, (vivii) one-half any liabilities of Seller to the Transfer TaxesStockholder or any affiliates or current or former stockholders, if applicable; or other equity owners of Seller, (vii) any liability for costs and expenses of the Seller having to do in connection with a business other than the Focus Factor Business; this Agreement or any transactions contemplated hereby, (viii) any liability with respect to negative cash or book balances or any Employee or former employee of Sellerintercompany debt by and between, or by and among, Seller and any consultant retained by Seller; affiliate of Seller and (ix) any environmental liability to any Governmental entity arising out of or resulting from relating to the operation of the Business or Seller’s compliance leasing, ownership or noncompliance with operation of real property. All Excluded Liabilities shall be the responsibility of Seller, and Seller and the Stockholder agree to indemnify and hold the Buyer harmless against any lawExcluded Liabilities, regulationdebts, orderobligations, injunctionclaims or damages therefrom, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; costs and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Dateexpenses.

Excluded Liabilities. Purchaser shall Except as specifically set forth in this Agreement or in other documents or instruments required hereby, and except as specifically set forth herein with respect to the performance by Buyer of its obligations arising hereunder or under the Contracts and relating to periods from and after the Effective Time, Buyer does not and will not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out trade accounts payable, and debt for borrowed money existing as of the ownership or leasing of the Purchased Property prior to the Closing Date; Effective Time (“Retained Payables”), (ii) any liability arising out of any Action pending accrued expenses existing as of the Effective Time but not reflected in the Closing DateWorking Capital Amount (“Retained Accrued Expenses”); (iii) Liabilities liability for Taxes (as defined below) except for (A) Taxes, if any, reflected in the Closing Working Capital Amount, (B) Taxes, if any, governed by the Contracts assumed by Buyer and relating to or arising out periods from and after the Effective Time, and (C) Buyer’s obligations under Section 17, with respect to prorated property taxes and similar items, and Section 18, with respect to payment of one-half of the Focus Factor Business accruing prior to the Closing Date Transfer Taxes (including, without limitation, accrued sales taxesas defined in such section) (“Retained Taxes”); (iv) liabilities for Taxes of the specifically retained by Seller or Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made ’s employee benefit plans pursuant to this AgreementSection 8 below (“Retained Employee Liabilities”); (iv) any liability or obligation of any kind of Seller arising from the matters listed on Exhibit 4(a) (“Retained Known Liabilities”); and (v) any deferred Taxes liability or obligation of any nature; kind arising from the pre-Closing (viA) one-half operation of the Transfer TaxesBusiness, if applicable; (viiB) any liability use of the Assets, or (C) performance by Seller having under the Contracts, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, whether due or to do with a business become due, or otherwise (“Pre-Closing Contingent Liabilities”), other than the Focus Factor Business; (viiithose matters listed on Exhibit 4(b) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any and other document executed than as set forth in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateSection 5.1.

Excluded Liabilities. Purchaser shall not assume have no responsibility or liability for any liabilities or other obligations of Seller other than the Assumed Liabilities, and all liabilities and other obligations of Seller other than the Assumed Liabilities shall not be responsible to pay, perform or discharge any of the following Liabilities or remain obligations of Seller (collectively, the “Excluded Liabilities”): ). Without limiting the foregoing, Excluded Liabilities shall include, without limitation, the following: (i) any Liabilities of the Seller pursuant to the WARN Act relating to the action or inaction of any Party in connection with the transaction contemplated hereby, (ii) any Liabilities (x) related to or arising out of the ownership employment or leasing termination of the Purchased Property prior to the Closing Date; employment by Seller or its controlled Affiliates of any current or former employee or retiree of Seller, including any Employee of Seller (iiand any dependents or beneficiaries thereof) any liability or (y) related to, arising out of or under any Action pending as compensation or employee benefit plan, program or arrangement sponsored, maintained or contributed to by Seller or any of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing dateits Affiliates, including, without limitation, the Employee Benefit Plans, in each case, whether arising prior to, on or after the Closing Date, (iii) any Liabilities related to or arising out of accounts payable, including without limitation those payable to Seller’s Affiliates, and other accrued liabilities in respect of periods prior to the Closing Date, (iv) any Taxes payable by (whether assessed or unassessed) of or relating to the Seller resulting from payments made pursuant or relating to this Agreement; the Business or the Transferred Assets for any taxable period (or portion thereof) ending on or prior to the Closing Date, or arising or incurred with respect to the operations of the Seller prior to the Closing Date, (v) any deferred Seller’s share of Transfer Taxes of any nature; as set forth in Section 7.12(e), (vi) one-half of any Liabilities derived or resulting from or relating to the Transfer Taxesmatters set forth on Schedule 5.6 hereto or Liens expunged with respect to the Transferred Assets by the Sale Order, if applicable; (vii) any liability Liabilities related to or arising out of any investigations or proceedings of the U.S. Customs and Border Protection with respect to the Seller having to do with a business other than or the Focus Factor Business; Business and (viii) any liability with respect to any Employee or former employee of SellerLiabilities pursuant to, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e.under, the liability is imposed by Indenture dated March 23, 2005, among Escada AG, the Government entity); Subsidiary Guarantors named therein, The Bank of New York and AIB BNY Fund Management (xIreland) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateLimited.

Excluded Liabilities. Notwithstanding anything to the contrary in this -------------------- Agreement, except as expressly set forth in Section 2.1 above, Purchaser does not assume, and Seller shall not assume indemnify and shall not be responsible to pay, perform hold Purchaser harmless from all liabilities arising from or discharge in connection with any or all of the following Liabilities or obligations of Seller following: (collectively, a) the “Excluded Liabilities”): (i) Liabilities relating to or arising out operation of the ownership Business or leasing sale of the Purchased Property Products prior to the Closing Date; (iib) any defective Products; (c) Sales Representative Agreements; and (d) claims of patent infringement and/or product liability arising out from Seller's sale of Product, and/or from sale by Purchaser or any Action pending as of its subsidiaries to customers anywhere in the Closing Date; (iii) Liabilities for Taxes relating to world of Inventory and/or Product purchased from Seller on or arising out of the Focus Factor Business accruing prior to after the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or and/or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of scale products purchased from Seller based on Seller’s actions before or omissions occurring after the Closing Date., including but not limited to any claim related to or arising from any of the matters set forth on Schedule 5.6, (collectively the "Excluded -------- Liabilities"). Without limiting the foregoing, Purchaser's rights and ----------- Seller's obligations with respect to patent infringement claims pursuant to this Section 2.2, subdivision (d) shall include (i) liabilities relating to any customer return and/or inability of Purchaser or any of its subsidiaries to sell inventory of Product or other scale products purchased from Seller as the result of a patent infringement claim and/or (ii) any enhanced damages including for willful infringement, arising from or in connection with a patent infringement claim in connection with which Seller has provided Purchaser a written opinion of counsel that there is no infringement. With respect to defective Product pursuant to this Section 2.2, subdivision (b), Purchaser shall ship all defective Product to Seller's facility in Hong Kong. For defective Products returned to Purchaser within six (6) months from the Closing Date, Seller shall credit or, at Sellers election, directly reimburse Purchaser for such defective Products in an amount equal to such customer's actual cost of goods for such defective Products. For defective Products returned to Purchaser after the end of such 6-month period, Seller shall credit or, at Seller's election directly reimburse Purchaser for, such defective Products in an amount equal to Purchaser's cost (FOB Yantian) for such Products. In each such case of a defective Product return, whether such return occurs within or after such 6-month period, such credit or reimbursement shall be made within ten (10) business days from the date of invoice from Purchaser, together with Purchaser's reasonable out of pocket expenses incurred to ship such defective Products to Hong Kong

Excluded Liabilities. Purchaser shall not assume and shall not be responsible to pay, perform or discharge any All of the following Liabilities of Sellers or obligations of Seller (collectively-------------------- any other Person, whether arising or to be paid, performed or discharged prior to, at, or after the “Excluded Closing which are not expressly included in the Assumed Liabilities”): , including the following: (i) all Liabilities of Sellers to their Affiliates, including accounts payable and accrued expenses; (ii) all Liabilities of Sellers under this Agreement (including the indemnification obligations of Sellers under Article VIII hereof) and any agreement executed pursuant hereto or contemplated hereby; (iii) all legal, accounting, brokerage, and finder's fees, if any, or other expenses incurred by Sellers in connection with this Agreement or the consummation of the transactions contemplated hereby, (iv) all Liabilities relating to the Excluded Assets; (v) all Liabilities under any Benefit Plans; (vi) [Intentionally Omitted]; (vii) all Liabilities with respect to the employment, termination of employment, including a constructive termination, or arising out failure to employ by Sellers of any individual in connection with the ownership Credit Card Business (including any Employee) attributable to any actions or leasing of the Purchased Property inactions prior to the Closing Date; (iiviii) any liability arising out of any Action Liability relating to the Cardholder Agreements or the pending as of Credit Card Applications to the extent such Liability arises in connection with Sellers' ownership or use of, or acts or omissions with respect to, the Cardholder Agreements or the pending Credit Card Applications prior to the Closing Date; (iiiix) Liabilities for Taxes relating any Liability with respect to or arising out the conduct of the Focus Factor Credit Card Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity)Date; (x) any liability Liability in respect of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this AgreementSellers' accounts payable; and (xi) any liability Liability for or in respect of the payment of any Taxes or Income Taxes arising out of or relating to the ownership or use of the Credit Card Assets or the conduct of the Credit Card Business prior to the Closing Date, and, except as otherwise expressly provided in Section 7.5 of this Agreement, any Liability for or in respect of the payment of any Taxes and Income Taxes payable by Sellers as a result of the consummation of the transactions specified in this Agreement; (xii) any Liability with respect to any goods and services sold by Sellers or any of their Affiliates, including any Liability under any contract between any Seller based on Seller’s actions of any of such Sellers' Affiliates and a Cardholder relating to goods or omissions occurring after services purchased by such Cardholder; (xiii) any Liability with respect to any litigation as of the Closing Date (including any litigation relating to the Securitization Trust or the Securitization Assets); and (xiv) any Liabilities related to the Securitization Trust or the Securitization Assets arising out of or relating to the ownership or use of the Credit Card Assets or the conduct of the Credit Card Business prior to the Closing Date.

Excluded Liabilities. Purchaser Buyer shall not assume assume, and shall not be responsible for: (i) costs necessary to pay, perform or discharge cure any defaults that may exist under any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or Assigned Contracts arising out of the ownership or leasing of the Purchased Property prior to the Closing DateCommencement Date with the exception of the Assumed Commissions (the "Cure Costs"); (ii) any liability arising out of obligations under any Action pending as of the Closing Dateemployment agreements; (iii) Liabilities for Taxes any costs incurred by ETS, or costs relating to or arising out to, obtaining Shareholder Approval of the Focus Factor Business accruing transaction contemplated hereby; (iv)other liabilities arising from, or otherwise relating to, the Sale Assets arising prior to the Closing Date (includingCommencement Date, without limitation, accrued sales taxesother than as provided in Section 2.4(iv); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes other liabilities that related to the Excluded Assets (such liabilities described in clauses (i) through (v) of this Section, the "Excluded Liabilities). Seller represents that it has not entered into any nature; (vi) one-half special discounting or offered promotional terms that may affect the obligations to customers under any of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than Assigned Contracts. The parties hereby further acknowledge and agree that except for the Focus Factor Business; (viii) any liability obligations arising under the Assigned Contracts or otherwise with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring Sale Assets as herein provided after the Closing Date, neither Buyer, nor any affiliate, officer, director, employee, shareholder or agent of Buyer shall assume, or be deemed to assume, any liabilities or obligations of Seller arising out of acts or occurrences prior to the Commencement Date, or otherwise based on any event, facts or circumstances in existence prior to the Management Agreement, sale of the Sale Assets, or in connection with or arising from any activities of Seller. (As provided for in Section 11 of this Agreement, Seller shall indemnify and hold Buyer harmless from and against any liabilities that are not Assumed Liabilities).

Excluded Liabilities. Purchaser shall not assume Except with respect to the Assumed Liabilities specified in Section 2.3 hereof, and shall not be responsible to pay, perform or discharge regardless of whether any of the following Liabilities may be disclosed to Purchaser pursuant to Section 2.1 hereof or obligations of Seller (collectivelyotherwise, the “Excluded Liabilities”): (i) Liabilities relating to or arising out whether Purchaser may have knowledge of the ownership same, Purchaser shall not assume, and shall have no liability or leasing responsibility for, any debts, liabilities, obligations, claims, expenses, Taxes, contracts, accounts payable or commitments of the Purchased Property prior to the Closing Date; (ii) any liability Seller of any kind, character or description, whether accrued, absolute, contingent or otherwise, arising out of any Action pending as act or omission occurring or state of the Closing Date; (iii) Liabilities for Taxes relating to facts existing prior to, on or arising out of the Focus Factor Business accruing prior to after the Closing Date (including, without limitation, accrued sales taxesthe "Excluded Liabilities"); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any liability of any Seller relating to or arising from (i) the breach by any Seller of its obligations under the Assigned Contracts, (ii) any infringement by any Seller of the rights of others with respect to the Purchased Business or the Purchased Assets, (iii) any liability of any Seller for Taxes, including specifically, without limitation, any social security taxes or other Taxes payable 16 relating to such Seller's current or former employees, any employment or withholding Taxes upon employees collected by such Seller, any income, capital gains, sales, conveyance, transfer, franchise or capital Taxes that may be due in connection with the consummation of the transactions contemplated hereby; (iv) any accrued and unpaid payroll, severance, bonus, holiday and/or vacation obligations to employees of any Seller resulting from payments made pursuant to this Agreementexisting at the Closing Date; and (v) any deferred Taxes liability or obligation of any nature; (vi) oneSeller for current or long-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect term indebtedness or payables or amounts owing to any Employee or former employee of any Seller's officers, directors, shareholders or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of its or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement their affiliates or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Datethird party.

Excluded Liabilities. Purchaser shall Buyer is assuming only the Assumed Liabilities from Seller and the Retained Subsidiaries and is not assume and shall not be responsible to pay, perform assuming any other Liability of Seller or discharge any of the following its Retained Subsidiaries of whatever nature, whether presently in existence or arising hereafter. All such other Liabilities or obligations shall be retained by and remain Liabilities of Seller or its Retained Subsidiaries, as applicable (collectively, all such Liabilities not being assumed being herein referred to as the “Excluded Liabilities”): ), including but not limited to the following: (a) all Liabilities to the extent arising out of or relating to the operation or conduct by Seller or any of its Retained Subsidiaries of the Retained Business; (b) all Liabilities to the extent arising out of or relating to any Excluded Asset; (c) all Liabilities relating to the Employee Plans except as expressly set forth in Section 8.01(h); (d) all Liabilities for Pre-Closing Taxes, other than Buyer’s portion of Property Taxes pursuant to Section 7.02, and any other Tax liabilities of Seller or the Retained Subsidiaries and their Affiliates (other than the Purchased Subsidiaries) with respect to Taxes for any Tax period (or portion thereof); (e) (i) all Liabilities and obligations, arising prior to, on or after the Initial Closing, relating to the employment, compensation, employee benefits or termination of employment or service of any Business Employee that does not become a Continuing Employee, (ii) all Liabilities and obligations, whether arising prior to, on or after the Initial Closing, relating to the employment, compensation, employee benefits or termination of employment or service of any employee who is not a Business Employee, and (iii) all Liabilities and obligations relating to the employment, compensation, employee benefits or termination of service of any Business Employee not specifically assumed pursuant to Section 3.04(e); (f) all insurance-related Liabilities (other than any such liabilities relating to employee benefits) arising prior to the Initial Closing Date, whether or not required to be paid as of the Initial Closing Date, in each case, arising out of any claims or causes of action made under any insurance policy of Seller or any of its Subsidiaries, including, for the avoidance of doubt any Liabilities relating to or arising out of the ownership or leasing of the Purchased Property workers compensation, by any Business Employee prior to the Initial Closing Date; (iig) all obligations to any liability arising out of broker, finder or agent for any Action pending as of investment banking or brokerage fees, finders’ fees or commission relating to the Closing Datetransactions contemplated by this Agreement and any other fees and expenses for which Seller is responsible pursuant to Section 12.03; (iiih) all Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (includingextent relating to, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance gift card program and RARE Rewards loyalty program, except to the extent set forth in Section 3.04(a), Section 6.20 or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this AgreementSection 6.21; and (xii) any liability all Liabilities reasonably related to the matters set forth on Schedule 4.10 (other than item 10 set forth therein) to the extent not covered under existing insurance policies of Seller based on Seller’s actions or omissions occurring after the Closing Dateand its Subsidiaries. 13 Section 3.06.

Excluded Liabilities. Purchaser Notwithstanding any provision in this Agreement or in the Disclosure Schedules to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (collectivelysuch Liabilities other than the Assumed Liabilities, the “Excluded Liabilities”): ). For the avoidance of doubt and without limiting the generality of the definition, unless included in the calculation of Final Aggregate Closing Consideration as provided in Section 1.03(a) above, “Excluded Liabilities” shall include without limitation (i) Liabilities relating any and all third-party claims asserted against any Seller, in each case to the extent arising from events, occurrences, acts and omissions of such Seller or arising out of the ownership or leasing of the Purchased Property circumstances occurring prior to the Closing Date; Closing, regardless of whether such claims were listed in Schedule 3.13, (ii) any liability amounts payable by Seller pursuant to any order, action or demand from any Governmental Authority arising out from events, occurrences, acts and omissions of any Action pending as of the Closing Date; Seller prior to Closing, (iii) Liabilities for Taxes relating to or arising out of included in the Focus Factor Business accruing prior to the Closing Date (includingRetained Payables Amount, without limitation, accrued sales taxes); (iv) liabilities for Taxes of Liabilities associated with the SellerPlans, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; Seller Taxes, (vi) one-half intercompany Liabilities solely between or among any of the Transfer TaxesSellers and/or Xxxxxxx, if applicable; (vii) any liability of Seller having to do Liabilities associated with a business other than the Focus Factor Business; Excluded Assets, and (viii) any liability with respect Indebtedness other than the Assumed Indebtedness. Sellers shall pay and satisfy in due course all Excluded Liabilities which they are obligated to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; pay and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Datesatisfy.

Excluded Liabilities. Purchaser Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyers shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (collectivelyall such Liabilities other than the Assumed Liabilities, the “Excluded Liabilities”): ). Each Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following: any Liabilities of the Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others; any Liability for (i) any Taxes relating to the operation of the Business or the ownership, possession or use of the Assets at or prior to the Closing; (ii) Sellers’ share of the Taxes that arise out of the consummation of the transactions contemplated hereby (including 75% of all Transfer Charges) or that are the responsibility of the Sellers pursuant to Section 6.12; or (iii) any other Taxes of the Sellers or the Seller Parent (or any stockholder, member or Affiliate of the Sellers or the Seller Parent) of any kind or description (including any Liability for Taxes of the Sellers or the Seller Parent (or any stockholder, member or Affiliate of the Sellers or the Seller Parent), whether or not arising before or after, or maturing before or after, the Closing, or that becomes a Liability of Buyers under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or law); any Liabilities relating to or arising out of the ownership Excluded Assets; any Liabilities in respect of any pending or leasing threatened Proceeding arising out of, relating to or otherwise in respect of the Purchased Property operation of the Business or the Assets to the extent such Proceeding relates to such operation on or prior to the Closing Date; (ii) any liability arising product Liability or similar claim for injury to a Person or property which arises out of or is based upon any Action pending as express or implied representation, warranty, agreement or guaranty made by the Sellers or the LicenseCos or by reason of the Closing Dateimproper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Sellers or the LicenseCos; (iii) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Sellers or the LicenseCos; any Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior Sellers arising under or in connection with any Employee Plan providing benefits to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes any present or former employee of the Seller, whether Sellers or not relating to or arising out LicenseCos; any Liabilities of the Focus Factor business and whether Sellers for any present or not incurred prior to former employees, officers, directors, retirees, independent contractors or consultants of the Closing dateSellers, including, without limitation, any Taxes Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers' compensation, severance, retention, termination or other payments; any claims or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Sellers or the LicenseCos; any trade accounts payable of the Sellers to the extent not accounted for in the Net Working Capital in the Final Adjustment Amount; any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, manager, employee or agent of the Sellers (including with respect to any breach of fiduciary obligations by same); any Liabilities under the Seller resulting from payments made Excluded Contracts or any other Contracts (i) which are not validly and effectively assigned to Buyers pursuant to this Agreement; (vii) any deferred Taxes of any nature; (vi) one-half of which do not conform to the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability representations and warranties with respect thereto contained in this Agreement; or (iii) to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising the extent such Liabilities arise out of or resulting from Seller’s compliance relate to a breach by the Sellers of such Contracts prior to Closing; any Liabilities associated with debt, loans or noncompliance credit facilities of the Sellers and/or the Business owing to financial institutions; except that the debt represented by the Intraparty Obligations will not be deemed an Excluded Liability of the LicenseCos (such Intraparty Obligations are, instead, an Asset); and any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of their Affiliates to comply with any law, regulation, orderregulatory bulletin, injunction, judgment, decree, ruling, assessment regulatory guidance or award (an “Governmental Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser shall The Contacts Parties acknowledge and agree, on each of their behalf and that of their Affiliates, that pursuant to the terms and provisions of this Agreement, Menicon will not assume any Obligation of the Contacts Parties or any of their Affiliates, other than the Assumed Obligations. In furtherance and not in limitation of the foregoing, neither Menicon nor any of its Affiliates shall assume, and shall not be responsible deemed to payhave assumed, perform any debt, Claim, Obligation or discharge other liability of the Contacts Parties or any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): their Affiliates relating to (i) Liabilities relating to or arising out any liabilities of the ownership Contacts Parties or leasing their Affiliates in respect of Taxes incurred in reference to the Purchased Property Acquired Business prior to the Closing DateDate or in conjunction with the Closing, subject to the provisions of Section 2(k) hereof; (ii) any brokers’ or finders’ fees, or other liability arising out of any Action pending as of the Closing DateContacts Parties and any of their Affiliates for the costs and expenses (including legal fees and expenses) incurred by the Contacts Parties and their Affiliates in connection with this Agreement; (iii) Liabilities any Obligations or liabilities, including medical, severance, pension plan or other benefits and compensation, for Taxes relating to or arising out any employees of the Focus Factor Business accruing Contacts Parties or their Affiliates for periods prior to their actual employment by Menicon or an Affiliate thereof, as the Closing Date case may be (including, without limitation, accrued sales taxesexcept to the extent that such obligations are set forth in Schedule 5 to this Agreement); (iv) liabilities for Taxes of the Seller, whether or not any Losses relating to any deficiency in or arising out of problem with any product sold by the Focus Factor business Contacts Parties and whether or not incurred their Affiliates prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this AgreementClosing; (v) any deferred Taxes of any natureemployee layoff and plant closing cost or liability arising from actions taken by the Contacts Parties prior to Closing; and (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of SellerClaims for injuries, property damage, or any consultant retained by Seller; (ix) any liability other Losses involving the Acquired Business and which are solely attributable to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions events occurring after the Closing Dateprior to Closing.

Excluded Liabilities. Purchaser EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BUYER DOES NOT ASSUME AND SHALL NOT BE LIABLE FOR ANY OF THE DEBTS, OBLIGATIONS OR LIABILITIES OF THE SELLER, THE BUSINESS OR ANY AFFILIATE OF THE SELLER, WHENEVER ARISING AND OF WHATEVER TYPE OR NATURE. In particular, but without limiting the foregoing, the Buyer shall not assume assume, and shall not be responsible deemed by anything contained in this Agreement (other than to pay, perform the extent expressly provided in Section 2.2 “Assumed Liabilities”) to have assumed and shall not be liable for any Indebtedness or discharge any Liabilities of the following Liabilities Seller, any Affiliate of the Seller or obligations of Seller the Business whether known or unknown, contingent, absolute or otherwise and whether or not they would be included or disclosed in financial statements prepared in accordance with GAAP (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out ). Without limitation of the ownership foregoing, the Excluded Liabilities shall include (other than to the extent expressly provided in Section 2.2 “Assumed Liabilities”) Indebtedness and Liabilities: (a) under any real estate lease or leasing of any contract or agreement to which the Purchased Seller is a party or by which the Seller or the Business is bound that has not been listed as an Assigned Contract on Disclosure Schedule 4.17; (b) with respect to any Assigned Contract or Assigned Personal Property Lease, arising from the period prior to the Closing Date; (iic) any liability arising out of any Action pending as collective bargaining agreement to which the Seller is a party; (d) for any Employee Benefit Plan and any employment related matters in respect of periods prior to the Closing Date; (iiie) Liabilities for any obligation for Taxes relating to or arising out of from the Focus Factor Business accruing period prior to the Closing Date (including, without limitation, accrued sales taxes)Date; (ivf) liabilities for Taxes any Liability for local or state Transfer Tax and other taxes that may be imposed upon the sale or assignment of the SellerAssets pursuant to this Agreement and the Xxxx of Sale, regardless of when such obligations may become known and due; (g) for any damages or injuries to persons or property or for any tort or strict liability arising from events, actions or inactions in the Business or the operation of the Business prior to the Closing Date; (h) arising out of any litigation against the Seller arising with respect to the period prior to the Closing Date, whether or not relating to threatened or arising out pending on or before the Closing Date; (i) any capital leases of the Focus Factor business Seller; (j) any Indebtedness of the Seller or the Business to any bank, institutional lender or other party charging interest or Indebtedness of the Seller to any of its shareholders, partners, members or owners (including any Indebtedness from any shareholder, partner, member or owner of the Seller); or (k) for amounts due or that may become due to Medicare, Medicaid or any other health care reimbursement or payment intermediary or contractor, or other third party payor on account of any form of payment adjustment, audit, assessment, recovery or recoupment whatsoever, including fines and whether or not incurred penalties, arising from the period prior to the Closing dateDate. The intent and objective of the Buyer and the Seller is that, includingexcept for the Assumed Liabilities explicitly assumed by the Buyer hereunder, without limitationthe Buyer does not assume, and no transferee liability shall attach to the Buyer pertaining to, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateExcluded Liabilities.

Excluded Liabilities. Purchaser shall Buyer is assuming only the Assumed Liabilities and is not assume and shall not be responsible to pay, perform assuming any other liability or discharge obligation of Seller or any of the following Liabilities other Selling Parties of whatever nature, whether presently in existence or arising hereafter, including without limitation any Claims asserted or unasserted, known or unknown for injuries to persons or property which are related to circumstances or events that predate the Closing of the transaction contemplated hereunder. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of Seller and the other Selling Parties (all such liabilities are, collectively, the “Excluded Liabilities”): ). Without limiting the foregoing, except as expressly provided by Section 2.3 above, neither the Buyer, BOXL nor any of their Affiliates will be deemed to have assumed or be liable for; (ia) Liabilities relating any capitalized leases not included in the Assumed Contracts, long-term debt, current liabilities, or any other liabilities of the Seller and the other Selling Parties whether or not reflected on the balance sheets of the Seller; (b) any Liens, other than Permitted Liens; (c) any intercompany liabilities or amounts due to the STEM Education, STEMify or other Affiliates of the Selling Parties; (d) any Excluded Employee Entitlements; (e) any obligations or liabilities of the Seller under the Account Receivable Purchase Agreement; (f) any obligations or liabilities of the Seller under the Prior Purchase Agreements (g) any liabilities of Selling Parties or any of its Affiliates accruing or arising out of the ownership on or leasing of the Purchased Property prior to before the Closing Date, unless expressly set forth in Section 2.3 above; or (iih) any liability arising out of any Action pending as or obligation of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect Selling Parties to any Employee broker, finder or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Datesimilar party.

Excluded Liabilities. Purchaser shall Notwithstanding any other provision of this French Asset Purchase Agreement to the contrary, the Buyer is not assume assuming any, and shall not be responsible to paythe Seller is retaining, perform paying, performing, or discharge any otherwise satisfying all, Liabilities of the Seller other than the Assumed Liabilities (the "Excluded Liabilities"), including, without limitation, the following (for the avoidance of doubt and notwithstanding anything in Clause 2.2.1, all of the following Liabilities or obligations of Seller (collectively, the “shall be deemed to be "Excluded Liabilities”" hereunder and none of the following shall be deemed to be "Assumed Liabilities" hereunder): (i) all Liabilities of the Seller incurred in connection with this French Asset Purchase Agreement and the transactions contemplated hereby; (ii) all Liabilities for (i) Taxes of the Seller or any of its respective Affiliates, (ii) Taxes arising from or with respect to the Purchased Assets or the operation of the French Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Date including, without limitation, Taxes allocable to the Seller pursuant to Clause 10 or the provisions of the MAPA; (iii) Taxes to be paid by the Seller pursuant to this French Asset Purchase Agreement, and (iv) payments under any Tax allocation, sharing or similar agreement with the Seller or any Affiliates of the Seller; (iii) all Liabilities based on any Legal Proceeding that (i) is currently pending as of the signing date of the MAPA, (ii) has been filed as of the Closing Date, (iii) is based on substantially the same facts, circumstances or matters as any Legal Proceeding that is currently pending or has been filed as of the Closing Date, or (iv) is based on circumstances, facts, events or matters that relate to any period, or any portion of any period, ending on or prior to the Closing Date, other than in respect of (i) through (iv) inclusive the Assumed Liabilities; (iv) all Liabilities in respect of any current or former employee of the Seller, whether arising by Law or Contract or otherwise, including all Liabilities relating to or arising out of any employment action or practice in connection with the ownership employment or leasing termination of employment of any Persons currently or formerly employed or seeking to be employed by the Seller, other than the Assumed Liabilities; (v) any Indebtedness of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending Seller outstanding as of the Closing Date; (iiivi) all Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes in respect of any nature; (vi) one-half of Contract other than the Transfer Taxes, if applicableAssigned Contracts; (vii) all Liabilities relating to any liability of Seller having to do with a business other than the Focus Factor BusinessExcluded Asset; and (viii) any liability with respect Liabilities Related to any Employee or former employee French Business specifically set forth on schedule 2.4 of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateMAPA.

Excluded Liabilities. Seller acknowledges and agrees that pursuant to the terms and provisions of this Agreement, Purchaser shall not assume and shall not be responsible assume, or become liable to pay, perform or discharge discharge, any Liability of Seller, whether occurring or accruing before, at or after the Final Closing, other than the Assumed Liabilities. In furtherance and not in limitation of the foregoing, and in all cases with the exception of the Assumed Liabilities, neither Purchaser nor any of its Affiliates shall assume, or be deemed to have assumed, any Indebtedness, Claim or other Liability of Seller or any predecessor whatsoever, whether occurring or accruing before, at or after the Final Closing, including the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): all Liabilities arising out of, relating to, in respect of or in connection with any Indebtedness of Seller (iother than the Purchaser Assumed Debt), including those items identified on Schedule 2.3(b)(i); all Liabilities arising out of, relating to, in respect of or in connection with the Excluded Assets, other than Liabilities specifically assumed; all Liabilities (A) associated with noncompliance with Environmental Laws (including for fines, penalties, damages and remedies); (B) arising out of, relating to, in respect of or in connection with the transportation, off-site storage or off-site disposal of any Hazardous Materials generated or located at any Transferred Real Property; (C) arising out of, relating to, in respect of or in connection with third-party Claims related to Hazardous Materials that were or are located at or that migrated or may migrate from any Transferred Real Property; (D) arising under Environmental Laws related to the Excluded Real Property; or (E) for environmental Liabilities relating with respect to real property formerly owned, operated or leased by Seller (as of the Final Closing Date), which, in the case of clauses (A), (B) and (C), arose prior to or arising out at the Final Closing Date, and which, in the case of clause (D) and (E), arise prior to, at or after the ownership or leasing of the Purchased Property prior to the Final Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities except for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (includingassumed in Section 2.3(a)(vi) and Section 2.3(a)(vii), without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability all Liabilities with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity Taxes arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with Seller’s business, the Purchased Assets or the Assumed Liabilities that are attributable to a Pre-Closing Tax Period (including any Taxes incurred in connection with the sale of the Purchased Assets, other than all Transfer Taxes); all Liabilities for (A) costs and expenses relating to the preparation, negotiation and entry into this Agreement and the Ancillary Agreements (and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, which, for the avoidance of doubt, shall not include any Transfer Taxes), (B) administrative fees, professional fees and all other expenses under the Bankruptcy Code and (C) all other fees and expenses associated with the administration of the Bankruptcy Case; Liabilities associated with Seller’s employees not otherwise assumed in Section 2.3(a) and Section 5.11, including those arising out of, relating to, in respect of or in connection with the employment, potential employment or termination of employment of any individual (A) prior to or at the Final Closing Date (including any severance policy, plan or program that exists or arises, or may be deemed to exist or arise, as a result of, or in connection with, the transactions contemplated by this Agreement) or (B) who is not a Transferred Employee arising after the Final Closing Date; all Liabilities arising out of, relating to, in respect of or in connection with Claims for infringement or misappropriation of third party intellectual property rights; all Liabilities to third parties for Claims based upon Contract, tort or any other basis; all workers’ compensation Claims set forth on Schedule 2.3(b)(ix) (“Excluded Workers’ Compensation Claims”); all Liabilities arising out of, related to or in connection with any implied warranty or other implied obligation arising under statutory or common law without the necessity of an express warranty or (B) allegation, statement or writing by or attributable to Seller; any liability or obligation related to any multi-employer plan (within the meaning of Section 3(37) of the Employee Retirement Income Security Act of 1974); and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateLiability that is not expressly assumed by Purchaser under this Agreement as an Assumed Liability.

Excluded Liabilities. Purchaser shall not assume and shall not be responsible to payThe term "Excluded Liabilities" means, perform or discharge any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): following: (i) Liabilities relating to or arising out any liability in respect of the ownership or leasing of the Purchased Property prior to the Closing Dateany Excluded Assets; (ii) any obligation or liability arising out of any Action pending as with respect to the issuance, sale and retirement of the Closing DateSeries A Notes of MFI in the original principal amount of $15,000,000 (the "Series A Notes"); (iii) Liabilities for Taxes relating to iii)any obligation or arising out of the Focus Factor Business accruing prior liability with respect to the Closing Date issuance, sale and retirement of all outstanding shares of Preferred Stock, $.001 par value per share, of MFI (including, without limitation, accrued sales taxesthe "MFI Preferred Stock"); (iv) liabilities for Taxes of the Seller, whether any obligation or not relating to or arising out of the Focus Factor business and whether or not incurred prior liability with respect to the Closing dateissuance, includingsale and retirement of all outstanding shares of Preferred Stock, without limitation$.001 par value per share, any Taxes payable by of MFD (the Seller resulting from payments made pursuant to this Agreement"MFD Preferred Stock"); (v) any deferred Taxes of any natureobligation or liability under the contracts relating to the Licensing Assets; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee obligation or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out the equity security holders of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed MFI including in connection with the transactions contemplated by this AgreementAgreement or the liquidation or dissolution of MFI; (vii)the Sellers' liability for any Taxes (as defined in Section 4(f)(iii)) attributable to taxable years or periods ending at the time of or prior to the Closing, or, in the case of any Straddle Period (as defined in Section 11(a)(i)), the portion of such Straddle Period (as determined in Section 11(a)(i)) ending at the time of the Closing, except to the extent such liabilities constitute "Accrued expenses" for purposes of determining the Working Capital Amount (as defined in Section 2(c)); (viii) the obligations and liabilities of any Seller or of any Subsidiary with respect to any contract, agreement, arrangement or understanding (including without limitation any payables) with any of their respective stockholders, creditors or affiliates (in each case, other than the Sellers and the Subsidiaries) identified on Schedule 1(d)(viii); (ix) the Sellers' and/or the Subsidiaries' liabilities under the Riverview Financial Corporation Profit Sharing Plan and the Mrs. Fields Inc. 401(k) Rxxxxxxxxx Xavings Plan; and (xix) the obligations and liabilities of any liability Seller or any Subsidiary with respect to the payment of Seller based on Seller’s actions expenses pursuant to Section 16, including any indemnification or omissions occurring after the Closing Date.other obligations under any related engagement agreements or arrangements. (e)

Excluded Liabilities. Purchaser Notwithstanding any other provision of this Agreement, except for the Assumed Liabilities expressly specified in Section 2.2, Buyer shall not assume assume, and shall not be responsible to payhave no liability for, perform any debts, liabilities, obligations, expenses, taxes, contracts or discharge any commitments of the following Liabilities Seller or obligations the Acquired Business of Seller (collectivelyany kind, character or description, whether accrued, absolute, contingent or otherwise, arising out of any act or omission occurring or state of facts existing prior to or on the “Excluded Liabilities”): Closing Date including, but not limited to, (i) Liabilities relating all liabilities of Seller for federal, state, local or foreign taxes arising by reason of the sale of the Acquired Business or attributable to the operations of the Acquired Business for any taxable year or portion thereof ending prior to the Closing Date or arising out of the ownership or leasing conduct of the Purchased Property Acquired Business prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to all liabilities or obligations arising out of the Focus Factor termination of any employees of the Acquired Business accruing prior to or concurrent with the Closing Date (including, without limitation, accrued sales taxes)Closing; (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (viiiii) any liability of Seller having related to do with the consummation of the transactions contemplated herein or required to be paid by Seller pursuant hereto, (iv) any liability of Seller that becomes a business other than the Focus Factor Businessliability of Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law; (viiiv) any liability with respect to any Employee or former employee of Sellersalary, bonus, wages, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) other compensation of any Government entity (i.e., the liability is imposed kind owed by the Government entity); (x) any liability Seller to employees of Seller under this Agreement for services rendered on or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after prior to the Closing Date, including any liability arising under the Employment Agreement, dated as of April 3, 2001, by and among the Seller and Xxxxxxx X. Xxxxx and (vi) against which Seller is insured or otherwise indemnified by others, to the extent of the applicable insurance policy or indemnity limit (collectively, the "Excluded Liabilities" and individually, an "Excluded Liability"). Seller shall remain fully liable for the Excluded Liabilities.

Excluded Liabilities. Purchaser Notwithstanding the foregoing, the Assumed Liabilities shall not assume include: (i) all Accounts Payable, including without limitation Accounts Payable relating to costs of sales, costs of advertising, costs of promotion and shall not be responsible costs of selling and general and administrative costs (“Costs”) in connection with all SES Business activities, including Conference Events, subscriptions and advertising that took place prior to paythe Closing, perform or discharge any (ii) all Accounts Payable and Refund Requests in connection with the San Xxxx Conference, (iii) Tax liabilities of the following Liabilities Seller or any member of any consolidated, affiliated, combined or unified group of which the Seller is a member provided that Transfer Taxes and Apportioned Obligations shall be paid in the manner set forth in Section 10.03, (iv) any liabilities or obligations arising out of, resulting from, or relating to claims, whether founded upon negligence, breach of warranty, strict liability in tort, workers’ compensation or any other similar legal theory, seeking compensation or recovery for or relating to injury to person or damage to property arising out of or related to any events related primarily to the SES Business prior to the Closing Date, (v) except as provided in Section 1.03(e), any Adverse Consequences (as such term is defined in Appendix 1) arising out of, resulting from or relating to any litigation, proceedings, actions, arbitrations, claims or investigations at law or in equity or by or before any governmental agency pending or threatened against the Seller as of the Closing Date, (vi) any liabilities or obligations arising prior to the Closing with respect to the SES Business Employees, including, without limitation, all obligations for salary, benefits workers’ compensation and premiums and other compensation which accrue prior to the Closing, unpaid commissions, unpaid payroll obligations, employee relocation packages and accrued travel and expense obligations, except for severance pay due, if any, to SES Business Employees to whom Buyer does not extend an offer of employment as of the Closing Date or the Expiration Date, as applicable, pursuant to Section 8.01 hereof or who Buyer directs Seller to terminate during the period between the Closing Date and the Expiration Date, (vii) any liability (whether asserted or unasserted, accrued or unaccrued, whether absolute or contingent, whether liquidated or unliquidated and whether due or to become due) of the Seller, or of any person included in the same controlled group of corporations or who is under common control with the Seller within the meaning of section 414 of the Code (an “ERISA Affiliate”), arising out of, resulting from, or related to any “employee benefit plan”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), maintained by the Seller or any ERISA Affiliate of the Seller, or to or under which the Seller or any ERISA Affiliate of the Seller was obligated to make contributions or pay benefits, at any time prior to the Closing, except as otherwise provided in the penultimate sentence of Section 8.02, (viii) lines of credit of the Seller in existence prior to the Closing, (ix) any consultant agreements of the Seller in existence prior to the Closing except as set forth on Schedule 2.05 the liabilities of which Buyer is assuming only insofar as they arise from activities incurred after the Closing Date, (x) any obligation of the Seller to indemnify any person by reason of the fact that such person was a director, officer, employee, or agent of the Seller, (xi) any liability of the Seller for costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, (xii) obligations of the Seller related to the SES Business not incurred in the Ordinary Course of Business after the date of the SES Business’ Statement of Assets and Liabilities and (xiii) any other liabilities not specifically included in the Assumed Liabilities, (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Sellers or any of their Affiliates of any kind or nature whatsoever other than the following Assumed Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): ). Sellers shall, and shall cause each of their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following: (a) any Liabilities of Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others; (b) all trade accounts payable of Sellers to third parties (other than trade accounts payable arising under Assumed Contracts for periods beginning on or after the Closing Date); (c) any Liability for (i) Taxes of Sellers (or any stockholder or Affiliate of Sellers) or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Sellers pursuant to Section 6.14; or (iii) other Taxes of Sellers (or any stockholder or Affiliate of Sellers) of any kind or description (including any Liability for Taxes of Sellers (or any stockholder or Affiliate of Sellers) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law); (d) any Liabilities relating to or arising out of the Excluded Assets; (e) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the ownership or leasing operation of the Business or the Purchased Property Assets to the extent such Action relates to such ownership or operation on or prior to the Closing Date; (iif) any liability arising out adulteration of product, product quality, product shortage or similar claims in respect of any Action pending as of products sold or any service performed by either Seller prior to the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (vg) any deferred Taxes Liabilities of Sellers arising under or in connection with any nature; Benefit Plan (viincluding any Multiemployer Plan) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect providing benefits to any Employee present or former employee of SellerSellers; (h) any Liabilities of Sellers arising under or relating to any Collective Bargaining Agreement, and any Liabilities of Sellers to any Union or any consultant retained by Seller; (ix) any liability employees belonging to any Governmental entity arising out of Union, whether pursuant to the Union Contract or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.otherwise;

Excluded Liabilities. Purchaser Notwithstanding anything in this Agreement to the contrary, except as specifically provided for as Assumed Liabilities in Section 2.3, Seller shall retain, and Buyer shall not assume and shall not assume, or in any way be responsible to payliable for or bound by, perform or discharge any liabilities of the following Liabilities Hampshire Parties or obligations the Business of Seller any kind (collectivelyknown and unknown, the “Excluded Liabilities”): matured and unmatured, accrued, recorded or unrecorded, or contingent, regardless of whether such rights are currently exercisable), including, without limitation (i) Liabilities any amounts due for Taxes relating to any taxable period ending, or arising out of incurred in connection with any transaction taking place, on or before the ownership or leasing of Closing Date and, with respect to any taxable period beginning prior to the Purchased Property Closing Date and ending after the Closing Date, the portion thereof prior to the Closing Date; , (ii) any liability indebtedness for borrowed money, (iii) any obligations for accounts payable or expenses of the Business or the Hampshire Parties (iv) any obligations under any of the arrangements or benefit plans or any retirement, severance or deferred compensation arrangement of the Hampshire Parties for the benefit of the Employees, (v) any obligation arising out of or in connection with any Action pending as contractual obligations of the Closing Date; Business or the Hampshire Parties or the termination thereof other than with respect to such contractual obligations included in the Acquired Assets, (iiivi) Liabilities any obligation based on any actual or alleged defect in the design, manufacture, quality, conformity to specification or fitness for Taxes relating to purpose of any product manufactured, sold or arising out of the Focus Factor Business accruing prior to the Closing Date distributed (including, without limitation, accrued sales taxes); (ivthe Acquired Inventory) liabilities for Taxes of by, or for, a Hampshire Party, or any service provided by the Seller, whether or not Hampshire Parties relating to or arising out of the Focus Factor business and whether or not incurred prior to Business, before the Closing dateDate, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant all product liability, product warranty liabilities and all liabilities in respect of product recalls or product warnings (including, without limitation, product labeling, product disclosure, voluntary recalls and warnings reasonably intended to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxesavoid or mitigate liability), if applicable; (vii) any liability of Seller having contractual obligations (including with respect to do with a business other than the Focus Factor Business; any leases) that are not Assumed Contracts, Assumed Purchase Orders or Assumed Purchase Contracts, and (viii) any liability with respect to any Employee costs or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed expenses payable by the Government entity); (x) any liability of Seller under this Agreement or any other document executed Hampshire Parties in connection with the transactions contemplated by this Agreement; and Agreement (xiincluding any transfer fees payable in connection with any Required Consents) any liability of Seller based on Seller’s actions or omissions occurring after (the Closing Date“Excluded Liabilities”).

Excluded Liabilities. Notwithstanding any other provision of this Agreement or any other writing to the contrary, the Purchaser shall and its Designated Affiliates are assuming only the Assumed Liabilities and are not assume and shall not be responsible to pay, perform or discharge assuming any other Liability of the Seller or any Selling Affiliate of whatever nature, whether presently in existence or arising hereafter. The Liabilities which are being retained by Seller and the Selling Affiliates and are not being assumed by the Purchaser or its Designated Affiliates include the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (a) any Liability for Taxes (i) of the Seller or any Selling Affiliate or (ii) attributable to the Business or the Purchased Assets, in each case, for any Pre-Closing Period (other than Taxes that are current Liabilities included in Final Closing Net Working Capital); (b) all Liabilities to or with respect to Employees, former employees of the Business, and any Seller Plan, other than those Liabilities expressly assumed pursuant to Section 2.3(c) and Section 2.3(d); (c) any Liability arising in connection with Environmental Laws or Hazardous Materials arising out of or relating to: (i) any properties or facilities that as of immediately prior to the Phase I Closing were formerly owned, leased or operated by, or in connection with the Business or by any of the Acquired Companies, or by any predecessor or affiliate thereof; (ii) the off-site treatment, transport, storage or disposal of Hazardous Materials on or prior to (A) the Phase I Closing by or on behalf of any of the Asset Selling Affiliates in connection with the Phase I Business or by or on behalf of any of the Acquired Companies or (B) the Phase II Closing by or on behalf of any of the Asset Selling Affiliates in connection with the Phase II Business, and, with respect to either (A) or (B), any predecessor or affiliate of the applicable Asset Selling Affiliates or the Acquired Companies; and (iii) the sale, use, handling or manufacture of products containing asbestos on or prior to (A) the Phase I Closing by or on behalf of any of the Asset Selling Affiliates in connection with the Phase I Business or by or on behalf of any of the Acquired Companies and (B) the Phase II Closing by or on behalf of any of the Asset Selling Affiliates in connection with the Phase II Business, or, with respect to either (A) or (B), any predecessor or affiliate of the applicable Asset Selling Affiliates or the Acquired Companies; including, in the case of each of the foregoing clauses (i), (ii) and (iii), any Proceeding relating thereto; (d) any Liability arising out of or related to any Excluded Asset; (e) all liabilities, obligations or commitments of the Seller, its Affiliates or the Business under confidentiality agreements to which the Seller is a party relating to the sale of the Business unless relating to or arising out of the ownership breach of any such agreement (a copy of which has been made available to Purchaser at or leasing of the Purchased Property prior to the applicable Closing) by a Transferred Employee following the applicable Closing Date for such Transferred Employee; (f) any Indebtedness of the Seller or its Affiliates; (g) all obligations or Liabilities of the Seller or any Asset Selling Affiliate under any Contract between or among the Seller or any Affiliate thereof and any Asset Selling Affiliate(s); (h) any intercompany accounts or notes payable due to the Seller or its Affiliates as of the applicable Closing Date; (iii) any liability arising out liabilities of the Business as conducted in Malaysia and Singapore; 19 (j) any other Liability set forth in Section 2.4(j) of the Seller Disclosure Schedule (k) Liabilities relating to the Business and the Purchased Assets in respect of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing periods prior to the each applicable Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made extent deemed to be Excluded Liabilities pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entitySection 5.9(b); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xil) unless and until the Phase II Closing shall occur, and without duplication of the foregoing, any and all liability or obligation of the Seller based on Seller’s actions or omissions occurring after and the Closing Date.Asset Selling Affiliates primarily relating to the Phase II Business and any and all liabilities and obligations to be assumed solely upon the consummation of the Phase II Closing, including all liabilities and obligations that become Assumed Liabilities upon the consummation of the Phase II Closing. Section 2.5

Excluded Liabilities. Purchaser Buyer shall not assume and shall not assume, or otherwise be responsible to payfor, perform or discharge any of the following Liabilities liabilities or obligations of Seller (whether actual or contingent, matured or unmatured, liquidated or unliquidated, or known or unknown) (collectively, the “Excluded Liabilities”): (i"EXCLUDED LIABILITIES") Liabilities relating to of Sellers, any other owner or arising out operator of the ownership or leasing of the Purchased Property Schools prior to the Closing Date; , or any Affiliate of any of the foregoing, other than those liabilities and obligations which have been specifically assumed by Buyer pursuant to Section 2.03. The "Excluded Liabilities" shall include, without limitation, any liabilities or obligations to the extent that they relate to, are connected with, are based upon or arise out of the following: (i) regulatory liabilities imposed by the U.S. Department of Education (the "DOE") and/or all regulatory and licensing agencies with regulatory authority over the Sellers and/or the Schools for periods prior to the Closing Date, (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes liabilities relating to or arising out employees of Sellers and the Focus Factor Business accruing Schools for periods prior to the Closing Date (including, without limitation, salary, bonuses, payroll taxes payable, accrued sales taxesvacation liability or other compensation or benefits); , (iii) liabilities with respect to accounts payable incurred on or before the Closing Date that are set forth on Schedule 2.04, (iv) Tax liabilities for Taxes of the Seller, whether Sellers or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, Xxxxx (including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to sales and income tax liabilities in connection with this Agreement; ), (v) any deferred Taxes of any nature; liabilities with respect to the claims referenced on Schedule 5.13 hereto, (vi) oneliabilities associated with any lines of credit or other long-half term debt of the Transfer TaxesSellers (including current portion), if applicable; (vii) any liability intercompany payables or debt to any parent or stockholder of Seller having any of the Sellers (whether to do with a business other than the Focus Factor Business; Xxxxx or any Affiliate of Sellers or Xxxxx) and (viii) any other liability with respect or obligation which has not been specifically assumed by Buyer pursuant to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateSection 2.03.

Excluded Liabilities. Purchaser shall not assume and shall not be responsible to pay, perform or discharge any The members of the following HIG Group shall retain, and none of TRM, the Purchasing Insurers or any other Tower Entity shall assume, any Liabilities of any member of the HIG Group or obligations any other CPRE Entity set forth in this Section 2.4, as such Liabilities exist as of Seller the Closing and regardless of when discovered or reported (collectively, the “Excluded Liabilities”): ). The Excluded Liabilities shall consist of only the following Liabilities: (ia) any Liability to the extent relating to the Excluded Assets, including Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the SellerInsurance Contract, whether or not in-force at the Closing, and any Liability to the extent relating to any breach of any such Insurance Contract, and all reserves for claims, including claims incurred but not reported and claims in course of settlement, expenses or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitationunearned premium, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) loss or loss adjustment expenses, and any deferred Taxes of any nature; (vi) one-half of the Transfer TaxesExtra Contractual Obligations, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to such Insurance Contracts; (b) any Employee Liability relating to any failure or former employee of Selleralleged failure to comply with, or any consultant retained by Sellerviolation or alleged violation of, any Applicable Law to the extent relating to the Excluded Assets; (ixc) 50% of any liability Other Liability; (d) notwithstanding anything to the contrary contained in this Agreement, including in Section 2.3, any Liability to the extent accrued for on the “Closing Date Balance Sheet” prepared pursuant to Section 3.3 of the Stock Purchase Agreement, including any Liabilities for Taxes and any Liabilities for any “Success Bonus”, “Stay Bonus” or other bonus, profit sharing or incentive compensation payable to any Governmental entity arising out member of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity)Employee Group; (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.and

Excluded Liabilities. Purchaser Notwithstanding the provisions of -------------------- Sections 2.1 and 2.2, Buyer shall not assume assume, and Sellers shall not be responsible to payremain liable for, perform any and all liabilities, obligations, claims and commitments (whether known or discharge any unknown, contingent, liquidated or otherwise, and whenever asserted) of or against the following Liabilities or obligations of Seller (collectivelyAssets, the “Business and Sellers other than the Lease Obligations and the Assumed Liabilities (the "Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes"); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by of the following: (i) any obligation under agreements and instruments included in the Excluded Assets, including all obligations under the Employee Plans and all employee benefit plans with respect to which any Seller resulting or any other entity which, together with any Seller that is treated as a single employer under Section 414 of the Code, has any liability or obligation; (ii) any liabilities or obligations of Sellers arising or incurred in connection with the negotiation, preparation and execution of the Agreement and the consummation of the transactions contemplated hereby, including without limitation the fees and expenses of Sellers' counsel, accountants, financial advisers and other experts; (iii) royalty liabilities for any period on or prior the Closing Date or arising out of or relating to the Excluded Locations; (iv) other than liabilities and obligations under Other Assumed Leases (to the extent that such liabilities and obligations are attributable to periods from payments made pursuant and after the Closing Date), any non-current liabilities arising out of or relating to this Agreementthe Excluded Locations and any liability or obligation that are specifically listed on Schedule 2.3; (v) any deferred Taxes liability or obligation ------------ (including any investigative or remedial obligation) arising under any applicable Environmental Laws (as defined in Section 3.19), except where the facts or conditions underlying such liability or obligation are solely caused by the operation of any naturethe Acquired Stores by Buyer after the Closing Date; (vi) one-half of any indebtedness other than with respect to the Transfer Taxes, if applicablecapital leases listed on Schedule 2.2(iii); (vii) any liability or obligation arising out ----------------- of Seller having or relating to do with a business other than any litigation which is based upon events or circumstances occurring on or prior to the Focus Factor BusinessClosing Date or arising out of or relating to the Excluded Locations; (viii) any liability with respect or obligation arising out of or relating to any Employee or former employee of Seller, intercompany obligation between Sellers or any consultant retained by Sellerof their Affiliates; and (ix) any liability to of Sellers for Taxes for any Governmental entity period on or prior the Closing Date or arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., relating to the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.Excluded Locations. ARTICLE 3 ---------

Excluded Liabilities. Purchaser Except as provided in Section 1.2 above with respect to the Assumed Liabilities, Buyer shall not assume and shall not be or become responsible to pay, perform or discharge for any of the following Liabilities Seller’s duties, obligations or obligations of Seller liabilities, whether known or unknown, fixed or contingent or arising from contract, tort or otherwise (collectively, the “Excluded Liabilities”). For the avoidance of doubt, the Excluded Liabilities shall include any and all of Seller’s duties, obligations or liabilities arising from or related to any Coronavirus Relief Program and any and all Taxes (or the non-payment thereof): (i) Liabilities relating to imposed on or arising out payable in respect of the ownership or leasing any of the Purchased Property Assets to the extent such Taxes are attributable to any taxable period (or portion thereof) that ends on or before the Closing Date; and (ii) of any person imposed on or payable in respect of the Seller Parties, whether as a transferee or successor, by contract or pursuant to any Law or otherwise, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; (ii) , in each instance regardless of whether any liability arising out such Taxes are reflected or shown as due or payable on any Tax return, and regardless of whether any Action pending as of the Closing Date; (iii) Liabilities for such Taxes relating to are assessed, payable or arising out of the Focus Factor Business accruing due prior to the Closing Date (includingto, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether on or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date. The Excluded Liabilities shall also include any and all of Seller’s duties, obligations or liabilities arising from or in connection with any change in control, accrued payroll, commissions, and benefits, 401k and profit sharing, retention, bonus, termination, severance, paid time off, or other Plan. To the extent Seller maintains annual bonus or similar plans for non-Owner employees and such items are paid annually, Seller will be responsible for their pro rata share of the liability which shall be reflected as a current liability of the Seller for purposes of calculation of Working Capital.

Excluded Liabilities. Except as expressly provided in Section 2.1.3 or 2.1.8, the Purchaser shall not assume and shall not be responsible to pay, perform or discharge at the Closing any of the following Liabilities of any Seller or obligations any of Seller the Sellers’ Affiliates (collectively, the “Excluded Liabilities”): ). The Sellers and the Purchaser hereby acknowledge and agree that the Purchaser shall not accept, assume, agree to pay, perform or otherwise discharge or satisfy or be liable for any Excluded Liabilities. Without limiting the foregoing (ibut subject to Sections 2.1.3 and 2.1.8), Excluded Liabilities include: all Liabilities of any Seller or of any Affiliate of any Seller under Contracts that are not Assigned Contracts; all Liabilities for any Tax other than those that the Purchaser is required to bear under Article VI; all Liabilities of any Seller or any Affiliate of any Seller respecting employees, collective bargaining agreements, pensions, benefits, product liability, environmental contamination or remediation; all Liabilities of any Seller or any Affiliate of any Seller constituting losses, costs or expenses (including fines, penalties, attorney fees and the costs of any investigations) Liabilities associated with, relating to or arising out of any action, arbitration, audit, claim, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before any Government Entity or arbitrator against the ownership Sellers or leasing any of their Affiliates or any of their respective representatives, or the Purchased Property prior to the Closing DateAssets; (ii) any liability arising out all Liabilities of any Action pending as Seller or any Affiliate of the Closing Dateany Seller arising from state, provincial or bankruptcy law theories of recovery, including fraudulent transfer; (iii) and any and all Liabilities for Taxes relating to of any Seller or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes any Affiliate of the Seller, whether any Seller not specifically included in Section 2.1.3 or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable specifically assumed by the Seller resulting from payments made Purchaser pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.Section 2.1.8.2.1.8;

Excluded Liabilities. Purchaser shall Except as expressly assumed pursuant to Section 1.3, Buyer is not assume assuming and shall not be responsible to pay, perform have any liability or discharge obligation whatsoever for any Liabilities of Seller or any of the following Liabilities its Affiliates (or obligations any predecessors of Seller or any of its Affiliates) whatsoever, all of which will be retained and satisfied when due by Seller or any of its Affiliates, as applicable (collectively, the “Excluded Liabilities”): ), which Excluded Liabilities shall include the following: (a) all Liabilities of Seller or any of its Affiliates arising under this Agreement or the Related Agreements or from the consummation of the transactions contemplated hereby or thereby; (b) all Liabilities of Seller or any of its Affiliates (or any predecessor thereto) to any present or former director, officer, employee, consultant or independent contractor of Seller or any of its Affiliates (or any predecessor thereto), or any of their respective spouses, children, other dependents or beneficiaries, including any and all Liabilities arising under any federal, state, local or foreign Laws, Approvals or Orders; (c) all Liabilities of Seller or any of its Affiliates (or any predecessor thereto) to any Affiliate or current or former member, stockholder, convertible debt holder, option or warrant holder or holder of other equity or debt interests (or any of their successors, assigns, heirs or legal representatives) of Seller or any of its Affiliates (or any predecessor thereto); (d) all Liabilities of Seller or any of its Affiliates (or any predecessor thereto) in respect of any Indebtedness, trade payables, accrued expenses or Transaction Expenses, including all intercompany payable balances owing by Seller or any of its Affiliates; (e) all Liabilities of Seller or any of its Affiliates (or any predecessor thereto) for or in respect of Taxes for any period, including any Taxes resulting from or relating to the consummation of the transactions contemplated hereby (including any Taxes that may become due as a result of any bulk sales or similar Tax that may be assessed against Seller or any of its Affiliates following the Closing); (f) all Liabilities arising in connection with or in any way relating to any real property now or previously owned, leased or operated by Seller or any of its Affiliates (or any predecessor thereto), or any activities or operations occurring or conducted at any real property now or previously owned, operated or leased by Seller or any of its Affiliates (or any predecessor thereto) (including offsite disposal), including any Liabilities arising under or relating to any Environmental Laws or any Liabilities associated with any Environmental Condition; (g) all Liabilities resulting from or relating to (or allegedly resulting from or relating to) the performance of any services or sale of any products by Seller or any of its Affiliates (or any predecessor thereto) prior to the Closing; (h) all Liabilities arising under or relating to any written or oral Contract to which Seller or any of its Affiliates is a party or by which Seller, its Affiliates or any of their respective assets or properties is otherwise subject or bound, other than Liabilities arising under the Assigned Contracts to the extent provided in Section 1.3; (i) all Liabilities relating to of Seller or arising out any of the ownership its Affiliates (or leasing any predecessor thereto) for any Actions against Seller or any of the Purchased Property prior to the Closing Date; its Affiliates (iior any predecessor thereto), including any Actions pending or threatened against Seller or any of its Affiliates (or any predecessor thereto) any liability arising out of any Action pending as of the Closing Date; (iiij) all Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; of its Affiliates (ixor any predecessor thereto) any liability to any Governmental entity arising out of or resulting from Seller’s any violation of or non-compliance or noncompliance with any lawfederal, regulationstate, orderlocal or foreign Approvals, injunctionLaws or Orders; (k) all Liabilities of Seller or any of its Affiliates (or any predecessor thereto) arising out of, judgment, decree, ruling, assessment relating to or award resulting from any obligation to indemnify any Person (other than pursuant to an “Order”) of any Government entity (i.e., Assigned Contract to the liability is imposed by the Government entityextent assumed pursuant to Section 1.3); (xl) all Liabilities relating to, based in whole or in substantial part on events or conditions occurring or existing in connection with, or arising out of, the employment of any liability employee of Seller under this Agreement or any of its Affiliates up to the Closing and with respect to the termination of any employee of Seller or any of its Affiliates on or before the Closing Date; (m) all Liabilities arising under any Employee Benefit Plan or any benefit, Tax or compensation Liability of any ERISA Affiliate; (n) all other document executed in connection with Liabilities arising out of or relating to the transactions contemplated by this Agreementownership or operation of the Acquired Assets or the operation of the Business prior to the Closing; and (xio) all Liabilities arising out of or attributable in any liability manner to the Excluded Assets. The disclosure of Seller based any Liability on Seller’s actions any schedule to this Agreement shall not create an Assumed Liability or omissions occurring after the Closing Date.other Liability of Buyer, except where such disclosed Liability has been expressly assumed by Buyer as an Assumed Liability pursuant to Section 1.3. 1.5

Excluded Liabilities. Purchaser Except as expressly set forth in SECTION 1.1(C), the Buyer shall not assume or be responsible at any time for any liability, obligation, debt or commitment of the Company, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise (the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Company expressly acknowledges and agrees that the Company shall retain, and that Buyer shall not assume or otherwise be responsible obligated to pay, perform perform, defend or discharge discharge, any liability or obligation incident to, arising out of or incurred with respect to, this Agreement and the following Liabilities transactions contemplated hereby (including any and legal or obligations of Seller (collectivelyother fees and expenses, the “Excluded Liabilities”): (i) Liabilities relating to all sales, income or other taxes arising out of the ownership or leasing transactions contemplated hereby; without limiting the generality of the Purchased Property prior to the Closing Date; (ii) foregoing, Seller shall promptly file a New York bulk sale tax notice and remit any liability arising out of any Action pending as and all sale taxes due in respect of the Closing Date; (iii) Liabilities for Taxes relating sale of assets contemplated in this transaction to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxesbe paid by Buyer at Closing); for taxes whether measured by income or otherwise, in connection with any Plan or Benefit Program or Agreement (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing dateas defined in SECTION 3.7), including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half liability of the Transfer TaxesCompany under ERISA, if applicable; (vii) under any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee foreign, federal, state or former employee of Sellerlocal law, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any lawrule, regulation, orderordinance, injunctionprogram, judgmentPermit, decreeor other Legal Requirement relating to health, rulingsafety, assessment or award (an “Order”) of any Government entity (i.e., Hazardous Materials and environmental matters applicable to the liability is imposed Company's business and/or the facilities Used by the Government entityCompany (whether or not owned by the Company); (x) any liability of Seller under this Agreement , pertaining to products sold or any manufactured or services performed or other document executed in connection with actions taken or omitted by the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after Company prior to the Closing Date, relating to any default taking place before the Closing Date under any of the Assumed Obligations to the extent such default created or increased the liability or obligation, or for Funded Indebtedness or accrued interest, fees or penalties with respect thereto. The Company agrees to satisfy and discharge the Excluded Liabilities as the same shall become due.

Excluded Liabilities. Purchaser shall not Seller agrees to assume and shall not be responsible to pay, perform or discharge any all liabilities of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or Company arising out of the ownership or leasing conduct of the Purchased Property Business prior to the Closing Date (the "Excluded Liabilities"), provided that the aggregate Excluded Liabilities that Seller shall assume and be responsible for (whether under Section 1.3, under Section 6.2, under Section 6.4, under the Assignment and Assumption Agreement, or otherwise) and the aggregate liability of Seller under Section 7.1 shall not exceed, in the aggregate, the Purchase Price. The Excluded Liabilities shall include all liabilities of the Company of whatever nature whatsoever arising with regard to the operation of the Business prior to the Closing Date, whether fixed or contingent, known or unknown, determined or determinable, due or not yet due, including without limitation (i) any liabilities and obligations growing out of or relating to relationships and dealings with competitors, customers, suppliers, employees (including but not limited to any sexual harassment, any workers compensation, or any Equal Employment Opportunity Commission claims), or licensees, or any other action or inaction of Company or its predecessors in interest prior to the Closing Date; (ii) any liability arising out of any Action pending payroll, employee vacation, sick leave, pro-rated pension or other Employee Plans (as of hereinafter defined) or benefits, or other employee expenses accrued to the Closing Date; (iii) Liabilities any lease, license, and utility payments pro-rated to the Closing Date, and (iv) any liability for Taxes relating to income taxes or sales or use taxes arising out of the Focus Factor Business accruing business operations prior to the Closing Date Date. Notwithstanding the foregoing, Excluded Liabilities do not include any Included Liabilities (including, without limitation, accrued sales taxesas hereinafter defined); . Only the liabilities designated as included liabilities on Schedule 1.3 (ivthe "Included Liabilities") liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business shall be assumed and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable owed by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateBuyer.

Excluded Liabilities. Purchaser Buyer shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities any liabilities or obligations relating to or arising out of the ownership Excluded Assets; (ii) any liabilities or leasing of obligations for (A) Taxes relating to the Business, the Purchased Property Assets or the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and (B) any other Taxes of Seller for any taxable period (in each case, other than Taxes for which Buyer is responsible pursuant to Section 8.1); (iii) any liability or obligation under any Seller Benefit Plan; (iv) any liability or obligation with respect to employees of Seller terminated prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant severance pay due or owing to this Agreementsuch terminated employees; (v) any deferred Taxes liability or obligation of any natureSeller for personal injury, property damage or intellectual property infringement arising or incurred with respect to products manufactured or sold or services provided by Seller prior to the Closing Date (other than warranty obligations) in connection with the operation of the Business or otherwise; (vi) one-half any liabilities or obligations of Seller or the Transfer Taxes, if applicableBusiness under any Environmental Laws; (vii) any liability of Seller having liabilities or obligations to do with a business other than the Focus Factor Businessextent constituting Transaction Expenses or Indebtedness; and (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance liabilities or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller obligations under this Agreement or any other document executed in connection with the transactions contemplated agreements entered into by Seller pursuant to this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.. 1.3

Excluded Liabilities. Purchaser Notwithstanding the foregoing, Buyer shall not assume and shall not be responsible deemed to payhave assumed any Liability of Seller or any Subsidiary whatsoever not specifically deemed to be an Assumed Liability, perform or discharge and the Assumed Liabilities shall not include, without limitation, any of the following following: (i) financial obligations related to the Purchased Assets that were incurred prior to, or are in existence on, the Closing Date; (ii) Liabilities or obligations of Seller or any Subsidiary to creditors, vendors, service providers, customers, clients, purchasers, leaseholders, shareholders or stakeholders; (iii) any Liabilities of Seller or any of its Affiliates for Taxes; (iv) except as provided in Section 3(c), any Liabilities of Seller or its Affiliates for income, transfer, sales, use and other Taxes arising in connection with the consummation of the transactions contemplated by this Agreement or the Plan of Reorganization, as defined in Section 6(d) (including any income Taxes arising because Seller or any Subsidiary is transferring the Purchased Assets); (v) any Liability of Seller or its Affiliates for the unpaid Taxes of any person under Section 1.1502-6 of the regulations issued under the Code (the “Treasury Regulations”) or any similar provision of state, local or non-U.S. Law, as a transferee or successor, by contract or otherwise; (vi) Liabilities arising out of or relating to products of Seller or any Subsidiary to the extent manufactured or sold prior to the Closing Date; (vii) Liabilities for violations of Law committed or penalties incurred by Seller or any Subsidiary on or before the Closing Date; (viii) Liabilities relating to or arising out of any employment action or practice in connection with the employment or termination of employment of any persons currently or formerly employed or seeking to be employed by Seller or its Affiliates, including Liabilities based upon breach of employment or labor contract, employment discrimination, wrongful termination, wage and hour or health and safety requirements, workers’ compensation, constructive termination, failure to give reasonable notice or pay in lieu of notice, severance or termination pay or the Consolidated Omnibus Budget Reconciliation Act, as amended (“COBRA”), the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Worker Adjustment Retraining Notification Act of 1988, as amended (the “WARN Act”), or the National Labor Relations Act, as amended, or any equivalent state, municipal, county, local, foreign or other Law (as defined in Section 4(w)), and Liabilities to employees or former employees of Seller or its Affiliates, including, but not limited to, salaries, wages, pensions, royalties or other benefits or severance pay or retention or termination agreements; (ix) Liabilities for claims, litigation, judgments or actions arising out of the ownership or use by Seller or any Subsidiary of the Purchased Assets; (x) Liabilities incurred in connection with the execution of this Agreement and the other documents or instruments to be executed and delivered by Seller or any Subsidiary pursuant to this Agreement and the consummation of the transactions contemplated hereby or thereby; (xi) Liabilities arising out of or relating to the Excluded Assets, including, but not limited to, Liabilities arising out of or relating to the Physician Stock Purchase Agreements, Ketai Agreements or any of the Contracts described in Sections 1(b)(i) and (ii); (xii) Liabilities under any Employee Plan/Agreement (as defined in Section 4(p)(i)) or the rights or Liabilities incident to or incurred in connection with any Employee Plan/Agreement; (xiii) Liabilities of Seller or any Subsidiary based on Seller’s or any Subsidiary’s acts or omissions occurring after the Closing; or (xiv) Indebtedness for borrowed money incurred, assumed or guaranteed by Seller or any Subsidiary (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (collectively, the “Excluded Liabilities”): ). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following: Any Liabilities of Seller or AHN arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others. Any Liability for (i) Taxes of Seller (or any Affiliate of Seller); (ii) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period other than Taxes included in the calculation of Final Working Capital, if any; (iii) Taxes that arise out of the consummation of the transactions contemplated under this Agreement; or (iv) Taxes that are the responsibility of Seller pursuant to Sections 10.02 and 10.03. Any Liabilities relating to or arising out of the ownership Excluded Assets (including any Taxes arising from or leasing in connection with any Excluded Asset and any outstanding checks). Any Liabilities in respect of any Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Property Assets to the extent such Action relates to such operation on or prior to the Closing Date; (ii, including the Action described on Section 2.04(d) of the Disclosure Schedules. Any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any liability express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller. Any recall, design defect or similar claims of any products manufactured, sold or distributed or any service performed by Seller, other than Product Replacement Obligations. Any Liabilities arising out of, in respect of or in connection with the failure by Seller or any Action pending as of its Affiliates to comply with any Law, Permit or Governmental Order. Without limiting the Closing Date; (iii) foregoing, Seller shall be responsible for any Liabilities for Taxes relating arising from or related to or arising out of the Focus Factor Business accruing failure to properly comply, with respect to products sold by Seller prior to the Closing Date Date, with (i) any federal, state, or local Law, Permit or Governmental Order of the U.S. Food and Drug Administration (“FDA”) or relating to Pharmaceutical Products and (ii) the duty to exercise the requisite care, skill and knowledge in purchasing, storing, selling, and distributing Pharmaceutical Products. Buyer acknowledges that all such compliance obligations based on operations of Buyer from and after the Closing shall be the obligation of Buyer, and Seller shall have no obligation to satisfy or indemnify Buyer for or in respect of any Liabilities of Buyer arising from and after the Closing. Any Liabilities of Seller or its Affiliates with respect to employment, termination of employment, compensation or employee benefits of any nature (including, but not limited to the benefits to be provided under the Benefit Plans) owed to any current or former employee, officer, director or independent contractor of Seller or its Affiliates (or the beneficiary of any current or former employee, officer, director or independent contractor of Seller or its Affiliates) whether or not such current or former employee, officer, director or independent contractor becomes a Transferred Employee or other service provider to Buyer or its Affiliates, that arises out of or relates to the employment or other relationship between Seller or its Affiliates and any such current or former employee, officer, director or independent contractor of Seller or its Affiliates or the termination of such relationship. Without limiting the foregoing, Seller shall be responsible for the payment of any severance payment or benefits (including, without limitation, accrued sales taxes); coverage under the Consolidated Omnibus Budget Reconciliation Act, of 1985 as amended (iv“COBRA”) liabilities for Taxes and similar state law) that become due to any current or former employee, officer, director or independent contractor of Seller or its Affiliates as a result of the Sellertermination of employment or service of such current or former employee, officer, director or independent contractor by such individual or by Seller or its Affiliates, including any such termination that occurs upon Closing (excluding as to any of the foregoing who becomes a Transferred Employee), and, in the case of any employee, officer, director or independent contractor of Seller or its Affiliates who does not become a Transferred Employee or other service provider to Buyer or its Affiliates at Closing, such termination that occurs after Closing. Buyer and its Affiliates shall not be obligated to continue or assume any employee benefit plan or program of Seller or its Affiliates (including, but not limited to the Benefit Plans) or be responsible for any obligation or Liability thereunder. For the avoidance of doubt, all Liability incurred by Buyer or its Affiliates in connection with providing continued medical, dental, vision, prescription drug or other benefits under COBRA or similar law (in excess of employee premiums collected by Buyer or its Affiliates) for any current or former employee, officer, director or independent contractor of Seller or its Affiliates (or the beneficiary or dependent of such individual), whether terminated prior to Closing or not terminated upon or after Closing (other than a Transferred Employee) shall constitute an Excluded Liability (regardless of any requirement under Applicable Law which may impute such Liability to Buyer). All Bulk Sales Liabilities having their origin in Taxes or Excluded Liabilities. Any Liabilities of Seller for transaction bonuses, change in control payments or other similar payments (and the employer portion of any Taxes relating thereto) due or triggered as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby. Any Environmental Claims or Liabilities under Environmental Laws or with respect to the presence, Release, Management of or exposure to Hazardous Materials arising out of or relating to facts, circumstances or conditions first existing or occurring on or prior to the Closing or otherwise, in each case arising out of any actions or omissions of Seller. Any Liabilities which constitute intercompany payables owing to Affiliates of Seller. Any Liabilities of the Business relating to or arising out from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that do not constitute part of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable Purchased Assets issued by the Business’ customers to Seller resulting from payments made pursuant on or before the Closing. Any Liabilities to this Agreement; (v) indemnify, reimburse or advance amounts to any deferred Taxes of any nature; (vi) one-half of the Transfer Taxespresent or former officer, if applicable; (vii) any liability director, employee or agent of Seller having to do with a business other than the Focus Factor Business; or its Affiliates (viii) any liability including with respect to any Employee or former employee breach of Sellerfiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller Indemnitees. Any Liabilities under the Excluded Contracts or any consultant retained by Seller; (ix) any liability other Contracts, including Intellectual Property Licenses, to any Governmental entity arising the extent such Liabilities arise out of or resulting from relate to a breach by Seller of such Contracts prior to Closing unless Liabilities for such breaches are included by Seller in the calculation of the Final Working Capital. Any Liabilities associated with Indebtedness of Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability . Any Liabilities of Seller to its equity security holders respecting dividends, distributions in liquidation, redemptions of shares, option payments or otherwise. Any Liabilities for deductibles, co-payments, premiums or other payments under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Daterelating to Insurance Policies.

Excluded Liabilities. Purchaser Except as provided in Section 3.2 and notwithstanding anything else to the contrary contained herein, the Sellers shall retain, and Buyer is not assume assuming and shall not be responsible to pay, perform liable for any Liabilities of Sellers or discharge any other Affiliates of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing dateSellers, including, without limitation, any Taxes payable Liabilities (i) under Contracts which shall not have been assigned to Buyer pursuant to this Agreement (including, but not limited to, any union agreements); (ii) for indebtedness for borrowed money; (iii) by reason of or arising as the Seller resulting from payments made result of any default or breach by Sellers of any Contract, for any penalty assessed against Sellers under any Contract or relating to or arising out of any event which with the passage of time or after giving of notice, or both, would constitute or give rise to such a breach, default or penalty, whether or not such Contract is being assigned to and assumed by Buyer pursuant to this Agreement; (iv) the existence of which would conflict with or constitute a breach of any representation, warranty, covenant or agreement of Sellers contained herein; (v) to any deferred Taxes shareholder or any ERISA Affiliate of Sellers, to any naturepresent or former employee, officer or director of or consultant to Sellers or their Affiliates (or independent contractor retained by Seller), or to any Employee Benefit Plan sponsored or maintained by Sellers or any ERISA Affiliate, including, without limitation, any bonuses, vacation or sick pay, any termination or severance pay related to Sellers or Sellers' Affiliates' employees, and any post retirement medical benefits or other compensation or benefits; (vi) one-half relating to the execution, delivery and consummation of this Agreement and the transactions contemplated hereby, including, without limitation, any and all Taxes incurred as a result of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions sale contemplated by this Agreement; (vii) for any Taxes of the Sellers including federal, state or local taxes imposed as a result of being or having been a member of a group filing a combined, consolidated or affiliated return); (viii) relating to or arising out of any environmental matter, including, without limitation, any violation of any environmental law or any other law relating to health and safety of the public or the employees of Sellers or Sellers' Affiliates; (xiix) any liability relating to, or arising out of, services rendered by Sellers or Sellers' Affiliates, or the conduct or operation of Seller based on Seller’s actions the business of Sellers or omissions occurring after Sellers' Affiliates, prior to the Closing Date; or (x) relating to the Excluded Assets (collectively, the "Excluded Liabilities").

Excluded Liabilities. Purchaser Anything herein to the contrary notwithstanding, other than the Assumed Liabilities, Buyer does not assume any of the liabilities or obligations of Seller, all of which are retained by Seller. Buyer shall not assume and shall not or be responsible obligated to pay, perform or otherwise discharge any obligation or liability of Seller, including without limitation any relating to the following Liabilities Business, direct or indirect, known or unknown, absolute or contingent, not expressly assumed by Buyer pursuant to this Agreement or the Assignment and Assumption Agreement (all such obligations of Seller (collectivelyand liabilities not being assumed, the “Excluded Liabilities”): ). Such Excluded Liabilities specifically include, but are not limited to, the following liabilities or obligations of Seller: (i) Liabilities any liability for any and all federal state and local Taxes relating to periods prior to the Closing Date; for purposes of this Agreement “Taxes” include all amounts owed to the federal government, or arising out any state or local government; (ii) any liability under any currently pending or past litigation or administrative proceedings of any kind; (iii) any liability for personal injury or property damage that relates to the ownership Business and occurred on or leasing of the Purchased Property prior to the Closing Date; (iiiv) any liability arising out under products liability, strict liability, or express or implied warranty claims relating to products manufactured or sold by Seller; (v) any trade payable, debt to, or loan or line of credit from, any party, other than the Assumed Liabilities or in excess of the amount shown on Schedule 2.1(b); (vi) any accrued and unpaid salaries or wages, independent contractor fees, vacation pay, sick pay, and/or paid time off of any Action pending as employee, officer, member, and/or manager of Seller, and/or any employee benefit plan accruals of any kind; (vii) any of Seller’s possible claims, demands, losses, fees, licenses, fines, penalties, Taxes, interest and other liabilities owed to any federal, state or local governments; (viii) any risk of loss to any of the Assets on or prior to the Closing DateDate or obligation undertaken by or reserved to Seller in this Agreement; (iiiix) Liabilities any claims by owners or former owners against Seller for Taxes unreturned capital contributions or loans, except as and only to the extent expressly payable by Buyer pursuant to this Agreement; (x) any liabilities of Seller Parties hereunder, (xi) any liabilities related to any violation of law or any action by any governmental authority, and (xii) all unknown liabilities of Seller and all liabilities of Seller relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes any of the Seller, whether Excluded Assets or contracts not relating assigned to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateBuyer hereunder.

Excluded Liabilities. Purchaser Except for the Assumed Liabilities, Buyer shall not assume and shall not be responsible to payliable for any Liabilities of Sellers or Sole Shareholder whatsoever, perform or discharge including any of the following Liabilities following: (a) any indebtedness for borrowed money; (b) any pension Liabilities; (c) any deferred compensation; (d) any Liability for Taxes, including any Taxes arising as a result of Seller’s operation of the Business or obligations ownership of Seller the Purchased Assets prior to the Closing Date (collectively, the “Excluded Liabilities”): inclusive of any applicable proration in respect of personal property Taxes); (e) any Liability of Sellers to Sole Shareholder or any Affiliate of Sellers or Sole Shareholder; (f) any Liability arising out of or relating (i) Liabilities relating to products of Sellers or arising out services provided by Sellers or (ii) to Sellers’ operation of the Business or ownership or leasing of the Purchased Property Assets prior to the Closing Date; (iig) any liability Liability under any Assumed Contract assumed by Buyer that arises after the Closing Date but that arises out of or relates to any breach that occurred prior to the Closing Date; (h) any Liability under any Contract (which is not an Assumed Contract); (i) any Liability related to the presence of or use of Hazardous Substances to the extent arising, occurring or incurred prior to the Closing Date; (j) Subject to Section 1.3.3, any Liability under any Employee Plan or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, health care plans or benefits to the extent any such Liability arises from or relates to events that occurred prior to the Closing Date; (k) any Liability under any employment, severance, retention or termination agreement with any employee; (l) any Liability arising out of or relating to any employee grievance; (m) any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Sellers; (n) any Liability to distribute to any of Sellers’ shareholders or other holders of equity interest in Seller or otherwise apply all or any part of the consideration received by Sellers hereunder; (o) any Liability arising out of any Action pending as of the Closing Dateagainst Sellers or Sole Shareholder; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (vp) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity Liability arising out of or resulting from Seller’s compliance or noncompliance non-compliance by Sellers with any lawLaw or Action by any Governmental Entity to the extent any such Liability arises from or relates to events that occurred prior to the Closing Date; (q) the accounts payable of Sellers set forth on Schedule 1.4(q) hereto (which is current as of the date captioned on such schedule), regulation, order, injunction, judgment, decree, ruling, assessment together with any additions thereto and subject to any reductions therefrom incurred or award paid by Sellers in operating the Business in the ordinary course of business after the date thereof through the Closing Date (an the “OrderAccounts Payable”) and (r) and all fees and disbursements of any Government entity (i.e.Sellers, the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement Sole Shareholder or any other document executed of their respective Affiliates in connection with the transactions contemplated by this Agreement; , including all fees and disbursements of their respective counsel, financial advisors, accountants and other representatives (xi) any liability of Seller based on Seller’s actions or omissions occurring after collectively, the Closing Date“Excluded Liabilities”).

Excluded Liabilities. Except for the Assumed Liabilities, the Purchaser shall not assume assume, and shall not be responsible to pay, perform have no liability or discharge obligation for any other Liabilities of the following Sellers including, without limitation (except to the extent included in the Assumed Liabilities) any Liability arising out of, or related to, any (i) employee of the Sellers (other than pursuant to Section 2.3(a)(iv) above), including any Liability with respect to any key employee retention plans; (ii) any severance payable to any employee of the Business (other than any such person who accepts employment with the Purchaser); (iii) any costs or expenses incurred in connection with, or related to, the administration of the Bankruptcy Case, including without limitation, any accrued professional fees and expenses of the Sellers’ attorneys, accountants, financial advisors and other professional advisors related to the Bankruptcy Case; (iv) Liabilities arising under any and all Contracts of the Sellers which are not Assigned Contracts; (v) Liabilities to the extent relating to the Excluded Assets; (vi) except as set forth in Section 2.3, Liabilities for any capital leases or obligations indebtedness for borrowed money of Seller any kind or nature; (vii) any royalties related to any period of time prior to the Petition Date; (viii) any income Taxes of any kind or nature; (ix) intercompany payables, intercompany loans or other intercompany liabilities of any kind or nature; (x) any pre-Closing litigation, claim or assessment, breach of contract, breach of warranty, tort, infringement, violation of law or environmental matters arising from circumstances or events prior to the Closing Date, in each case, of any kind or nature and whether related to the Business or otherwise and regardless of when commenced; or (xi) any Liabilities arising out of or related to any outstanding checks or other cash payments (whether paid by check, wire transfer or otherwise) issued, made or drawn on any bank or other deposit accounts of the Sellers at any time, including any Liabilities with respect to cash overdrafts on such accounts (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser Notwithstanding any provision in this Agreement, or any schedule or exhibit hereto and regardless of any disclosure to Buyer, the Telos Sellers shall retain, and shall promptly pay, perform and discharge when due, and Buyer shall not assume and shall not be responsible to pay, perform or discharge have any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): responsibility for (i) except as set forth in subparagraphs (vi) and (vii) of the definition of “Assumed Liabilities” in Article 1 hereof, any Liabilities of any Telos Seller that may have accrued prior to Closing with respect to directors, officers, employees or consultants of such Telos Seller (including, without limitation, in respect of accrued vacation and accrued compensation) and, except as set forth in Section 6.10, any Liabilities of any Telos Seller that may accrue on or after the Closing with respect to any such person who is not a Transferring Employee (as defined in Section 6.10) as of the Closing, (ii) any Liabilities of any Telos Seller for Taxes, (iii) any Liabilities of any Telos Seller for contingent payments to interWAVE Communications International, Limited pursuant to the Technology Licensing Agreement by and between interWAVE Communications International Ltd., interWAVE Advanced Communications, Inc. and Seller on October 10, 2002; (iv) any Liabilities of any Telos Seller pursuant to any claims, judgments or arbitration awards against such Telos Seller with respect to any tort, breach of contract (other than warranties with respect to Seller Products or Services and which are Assumed Liabilities) or violation of law prior to the Closing by such Telos Seller (other than with respect to Comscape or the 3Com Litigation), (v) all Liabilities relating to or arising out of the ownership Excluded Assets or leasing the Excluded Contracts, (vi) all Liabilities of Seller arising under the Purchased Property prior to Management Incentive Plan–M&A of Seller and all Liabilities of Seller arising under the Closing DateTechnical Personnel Retention Bonus Program of Seller; (iivii) any liability arising out of any Action pending as of the Closing Date; (iii) all Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (ivmatters listed on Schedule 2.1(d) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) other Liabilities of any Government entity Telos Seller other than the Assumed Liabilities (i.e.such Liabilities of the Telos Sellers other than the Assumed Liabilities, the liability is imposed by the Government entity“Excluded Liabilities”); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser Notwithstanding anything to the contrary in this Agreement, Purchasers shall not assume and shall not or in any way be responsible for, and Sellers shall remain obligated to pay, honor, perform or discharge any and discharge, all of the following Liabilities or obligations of Seller Sellers (other than the Assumed Liabilities) (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation: (a) any Liabilities arising out of or relating to each Seller’s ownership, use or operation of the Business and the Purchased Assets, in each case prior to the Closing, arising by operation of law under any common law or statutory doctrine (other than the Assumed Liabilities); (b) any Liabilities based upon, relating to, arising under or with respect to the Excluded Assets or the ownership, operation or use of any businesses of Sellers or any of their Affiliates, other than the Business, whether before, at or after the Closing; (c) all payables and Indebtedness of Sellers (except to the extent taken into account in the calculation of the Post-Closing Adjustment Amount); (d) any Liabilities directly or indirectly arising out of or related to any breach of Contract by any Seller occurring or existing prior to the Closing; (e) any Liabilities or obligations for (i) Taxes payable by relating to the Seller resulting from payments made Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for the portion of any Straddle Period ending on and including the Closing Date, (iii) any other Taxes of Sellers or any of their equity holders or Affiliates, including Taxes that arise as a result of the sale of the Business or the Purchased Assets pursuant to this Agreement; , and (viv) any deferred Taxes Successor Taxes; (f) any Liabilities of Sellers based upon, relating to, or arising under or with respect to: (i) any Seller Benefit Plan, (ii) the employment or termination of employment or service: (x) of any nature; employee of any Seller employed by Purchasers following the Closing which relate to events occurring on or prior to the Closing and (viy) one-half of any current or former employee, consultant, independent contractor, leased employee or other agent of any Seller who is not employed by Purchasers following the Transfer TaxesClosing, if applicable; and (viiiii) workers’ compensation claims, unemployment insurance premiums or any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any liability of Seller having employee employed by Purchasers following the Closing which relate to do with a business other than events occurring on or prior to the Focus Factor Business; Closing and (viiiy) any liability current or former employee, consultant, independent contractor, leased employee or other agent of any Seller who is not employed by Purchasers following the Closing which relate to events occurring at any time; (g) any Liability based upon, arising under or with respect to any Employee Environmental Law, including any Liability of Sellers in any way pertaining to or former employee arising from the acts, omissions or strict liability of Seller, any predecessor of Sellers and any obligation or Liability for any consultant retained by Seller; (ix) any liability to any Governmental entity Remedial Action arising out of or resulting from Seller’s compliance related to any condition or noncompliance occurrence in existence prior to the Closing; (h) any Liability based upon, arising under or with respect to any law, regulation, order, injunction, judgment, decree, ruling, assessment matter disclosed or award required to be disclosed in Schedule 5.16; and (an “Order”i) any Liabilities of any Government entity (i.e., the liability is imposed Seller with respect to any COVID-19 Assistance received by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser shall Except for the liabilities and obligations with respect to the Assumed Contracts, the Assumed Collective Bargaining Agreements (subject to Pathmark's and Plainbridge's obligation to pay accrued vacation and sick time pursuant to Section 6.1) and the Assigned Leases (the "Assumed Liabilities") and the ERISA Section 4204 Obligation described in Section 4.3 hereof, Purchasers will not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of or in connection with or otherwise related to the Acquired Assets existing on the date of the Closing or arising after the Closing in connection with or as a result of the ownership or leasing of the Purchased Property Acquired Assets by Pathmark or Plainbridge prior to the Closing Date; (ii) any liability arising out of any Action pending as of whether absolute, accrued, contingent, known or unknown or otherwise, and whether filed or asserted prior to or after the Closing Date; ) (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes"Excluded Liabilities"); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability liabilities or obligations with respect to employee matters, products liability, environmental matters, litigation with respect to the Acquired Assets, or any Employee other liabilities, including, without limitation, any liability attributable to or incurred by Pathmark or Plainbridge arising from, or relating to, any collective bargaining agreement, bonus, incentive, deferred compensation, insurance, severance, termination, retention, change of control, employment, stock option, stock appreciation, stock purchase, phantom stock or other equity-based, performance, vacation, retiree benefit plan, program, agreement or arrangement (except to the extent paid for by Pathmark or Plainbridge under Section 6.1 hereof) (including, without limitation, any "employee benefit plan" as defined in ERISA Section 3(3), sponsored, maintained, contributed to or required to be contributed to by Pathmark or any trade or business which together with Pathmark would be deemed a "single employer" within the meaning of Section 4001 of ERISA (each, an "ERISA Affiliate"), for the benefit of any current or former employee of Seller, Pathmark or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Dateits Affiliates.

Excluded Liabilities. Purchaser Except to the extent expressly included in the Assumed Liabilities, and to the maximum extent permitted by law, Buyer shall not assume assume, and shall not be responsible to pay, perform have no liability or discharge obligation for any of the following Liabilities or obligations other liabilities of Seller (collectivelyor the Bankruptcy Estate, the “Excluded Liabilities”): as a successor in interest or otherwise, including, without limitation, any liability arising out of, or related to, any (i) Liabilities relating employee or consultant of Seller or the Bankruptcy Estate, including any liability with respect to any key employee retention plans, any liability with respect to or arising out from any “employee benefit plan” (as defined in section 3(3) of the ownership Employee Retirement Income Security Act of 1974, as amended), any liability with respect to the Worker Adjustment and Retraining Notification (WARN) Act and any liability with respect to COBRA coverage for employees or leasing consultants of Seller or the Bankruptcy Estate terminated prior to or as part of the Purchased Property consummation of the transactions set forth in this Agreement; (ii) any severance payable to any employee or consultant of Seller or the Bankruptcy Estate; (iii) any costs or expenses incurred in connection with, or related to, the administration of the Bankruptcy Case, including without limitation, any accrued professional fees and expenses of attorneys, accountants, financial advisors and other professional advisors related to the Bankruptcy Case; (iv) liabilities under any warranty, guaranty or similar obligation of Seller or the Bankruptcy Estate arising from or relating to any acts or transactions prior to the Closing Date; (iiv) any liability arising out of any Action pending as of amounts due or which may become due or owing under the Closing Date; (iii) Liabilities for Taxes relating Assigned Executory Contracts with respect to or arising out of the Focus Factor Business accruing period prior to the Closing Date (including, without limitation, accrued sales taxesany cure payments or obligations); (ivvi) any liabilities for Taxes of the Selleror obligations with respect to any litigation or threatened litigation, whether or not claim, obligation, damages, costs and expenses relating to or arising out of or relating to any actions or omissions of Seller or the Focus Factor business and whether Bankruptcy Estate or not incurred any use of any of the Purchased Assets prior to the Closing dateDate, includingwhether arising under contract, without limitationtort, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicablecivil or criminal law or otherwise; (vii) liabilities for environmental claims, whether arising under contract or statute, including without limitation any liability and all laws relating to pollution or the environment, including the Comprehensive Environmental Recovery, Compensation, and Liability Act, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 9601, et seq. (“RCRA”), the Clean Air Act, 42 U.S.C. § 7401, the Occupational Safety and Health Act, 29 U.S.C. § 600, et seq. (“OSHA”), and all other laws and regulations relating to emissions, discharges, releases, or threatened releases of pollutants, contaminants, chemicals, pesticides, or industrial, infectious, toxic or hazardous substances or wastes into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or otherwise relating to the processing, generation, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or industrial, infectious, toxic, or hazardous substances or wastes (collectively, “Environmental Laws”); (vii) all obligations of Seller having or the Bankruptcy Estate relating to do with a business other than taxes assessed or due prior to the Focus Factor BusinessClosing Date; (viii) any liability with all liabilities in respect to any Employee of all indebtedness of Seller or former employee of Seller, or any consultant retained by Sellerthe Bankruptcy Estate; (ix) any liability to any Governmental entity arising out accounts payable of Seller or resulting from Seller’s compliance the Bankruptcy Estate; or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) liabilities arising under any liability of Seller under this Agreement or any other document executed in connection with and all Excluded Assets ((i)-(x), collectively, the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date“Excluded Liabilities”).

Excluded Liabilities. Purchaser Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Sellers or any of their Affiliates of any kind or nature whatsoever other than the following Assumed Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): ). Seller Parent shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following: (a) all trade accounts payable of Sellers to third parties in connection with the Business that remain unpaid as of the Closing Date, regardless of whether they are reflected on the Interim Balance Sheet or arose in the ordinary course of business consistent with past practice since the Interim Balance Sheet Date; (b) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others; (c) any Liability for (i) Taxes of Sellers or any Affiliate of Sellers, (ii) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; and (iii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Sellers pursuant to Section 6.13; (d) any Liabilities relating to or arising out of the ownership Excluded Assets; (e) any Liabilities in respect of any pending or leasing threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Property Assets to the extent such Action relates to such operation on or prior to the Closing Date; (iif) any liability product Liability or similar claim for injury to a Person or property to the extent arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes or relating to facts, circumstances or arising out of the Focus Factor Business accruing conditions existing on or prior to the Closing Date (includingwhich arises out of or is based upon any express or implied representation, without limitationwarranty, accrued sales taxes)agreement or guaranty made by Sellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products manufactured or sold or any service performed by Sellers; (ivg) liabilities for Taxes any recall, design defect or similar claims of any products manufactured or sold or any service performed by Sellers to the Seller, whether or not relating to or extent arising out of the Focus Factor business and whether or not incurred relating to facts, circumstances or conditions existing on or prior to the Closing dateClosing; (h) any Liabilities of Sellers arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Sellers; (i) any Liabilities of Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of Sellers, including, without limitation, any Taxes payable Liabilities associated with any claims for wages or other benefits, bonuses, workers’ compensation, severance, retention, termination or other payments; (j) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Sellers; (k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to a Seller resulting from payments made on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to a Buyer pursuant to this Agreement; (vl) any deferred Taxes Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of any nature; Sellers (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability including with respect to any Employee or former employee breach of Sellerfiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller Indemnitees; (m) any Liabilities under the Excluded Contracts or any consultant retained by Sellerother Contracts, including Intellectual Property Licenses, (i) which are not validly and effectively assigned to a Buyer pursuant to this Agreement; (ixii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (ii) to the extent such Liabilities arise out of or related to a breach by a Seller of such Contracts prior to Closing; (n) any liability Liabilities for actual or alleged infringement of Intellectual Property that relates to (i) the Products sold or shipped by Sellers prior to the Closing Date, (ii) the Legacy Products; including any Governmental entity Liabilities to indemnify Business’ customers pursuant to a Contract, arising out of or resulting from Seller’s compliance in connection with “In re Matter of Certain Optoelectronic Devices, Components Thereof, and Products Containing Same, Investigation No. 337-TA-669” or noncompliance with any lawAvago Technologies Fiber IP (Singapore) Pte Ltd. v. EMCORE Corporation, regulationNo. 3:08-cv-05394 (N.D. Cal. filed December 1, order2008) or (iii) U.S. Patent No. 5,359,447, injunction, judgment, decree, ruling, assessment regardless of whether such Liability accrues before or award (after the Closing and under an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity)Assigned Contract or an Excluded Contract; (xo) any liability Liabilities associated with debt, loans or credit facilities of Seller under this Agreement Sellers and/or the Business owing to financial institutions; (p) any Liabilities arising out of, in respect of or any other document executed in connection with the transactions contemplated failure by this AgreementSellers or any of its Affiliates to comply with any Law or Governmental Order; (q) Liabilities associated with any Benefit Plan, or any assets held in trust or otherwise relating to any Benefit Plan or the funding thereof; any insurance policy, contract, trust, third party administrator contract or other funding arrangement for any Benefit Plan; any monies held by Seller Parent or its Affiliates in any account dedicated to the payment of benefits or insurance premiums relating to any Benefit Plan, or Seller Parent’s or any Affiliate’s rights to any such assets, contracts or monies; and (xir) any liability Liabilities arising out of, in respect of Seller based on or in connection with the closure of Seller’s actions or omissions occurring after offices used for the Closing Date.Business in Taiwan. Section 2.05

Excluded Liabilities. Purchaser It is expressly understood that, except for the Assumed Liabilities and CLEC Liabilities, Buyer shall not assume and shall not assume, pay or be responsible to pay, perform liable for any liability or discharge any of the following Liabilities or obligations obligation of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to kind or arising out of the Focus Factor Business accruing prior to the Closing Date (includingnature at any time existing or asserted, without limitationwhether, accrued sales taxes); (iv) liabilities for Taxes of the Sellerknown, whether unknown, fixed, contingent or otherwise, not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing datespecifically assumed herein by Buyer, including, without limitation, any Taxes payable by the Seller liability or obligation relating to, resulting from payments made pursuant or arising out of (i) the Excluded Assets, including, without limitation, the Excluded Contracts, (ii) employee benefit programs of the Business, including, without limitation, any obligation to this Agreement; provide any amounts due to the employees under any pension, profit sharing or similar plan, any bonus or other compensation plan, or related to vacation or other similar employee benefits, or arising as a result of the transactions contemplated hereby (except for up to one week vacation and fifteen days sick leave per employee, previously accrued), (iii) any liabilities prior to the Second Closing Date in connection with the Subsidiary's CLEC business exceeding in the aggregate fifty thousand dollars ($50,000) (the "Excluded CLEC Liabilities"), (iv) any liabilities arising in connection with the CLEC License Transfer in excess of the License Costs Maximum, or (v) any deferred Taxes of any nature; (vi) one-half of fact existing or event occurring prior to the Transfer TaxesFirst Closing Date or, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Sellerthe Subsidiary, prior to the Second Closing Date, or any consultant retained by Seller; (ix) any liability relating to any Governmental entity arising out the operation of or resulting from Seller’s compliance or noncompliance the Business prior to the First Closing Date or, with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e.respect to the Subsidiary, the liability is imposed Second Closing Date. The liabilities which are not assumed by the Government entity); (x) any liability of Seller Buyer under this Agreement or any other document executed in connection with are hereinafter sometimes referred to as the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date"Excluded Liabilities."

Excluded Liabilities. Purchaser shall not Except for the Assumed Liabilities, it is expressly understood and agreed that notwithstanding anything to the contrary contained herein, neither the Purchasers nor any of their respective Affiliates (including, for the avoidance of doubt, the Parent) will assume and shall not be responsible or have any liability or obligation whatsoever with respect to pay, perform or discharge any of the following Liabilities Seller’s, the Affiliated Trucking Company’s or obligations any Shareholder’s obligations, liabilities, contracts, debts, claims, costs, expenses, agreements or understandings, of Seller any kind or nature whatsoever at any time existing or asserted, whether or not accrued on each Seller’s financial statements or recorded in their respective books and records, whether fixed, contingent or otherwise, whether known or unknown, whether arising prior to, on or after the Closing Date and whether or not relating to the operation of the Business or the Sellers’ or the Affiliated Trucking Companies; ownership or use of the Purchased Assets prior to the Closing Date (collectively, the “Excluded Liabilities”): ). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, and the Sellers or the Affiliated Trucking Companies shall retain, and neither the Purchasers nor any of their respective Affiliates shall assume or be liable for, the following liabilities and obligations: (i) Liabilities relating to Any liability or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) obligation for any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for and all Taxes of the SellerSellers, whether Shareholders or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing dateBusiness (except Taxes prorated in accordance with Section 2.4), including, without limitation, any (A) Taxes payable by arising as a result of the Seller resulting from payments made Sellers’ operation of the Business or use or ownership of the Purchased Assets prior to the Closing Date, (B) Taxes that will arise as a result of the sale of the Purchased Assets pursuant to this Agreement; , and (vC) any deferred Taxes of any nature; (vi) one-half nature arising as a result of the Transfer TaxesSellers’ operation of the Business. (ii) Any liability or obligation of the Shareholders, if applicable; (vii) the Sellers, any liability Affiliated Trucking Company or any of Seller having to do with a business their respective Affiliates under any note, bond or other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Sellerdebt instrument, or any consultant retained by Sellerguarantee of the indebtedness of any Person; (ixiii) Any defects in products sold by the Sellers prior to the Closing or any liability to or obligation of the Sellers or any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) their respective Affiliates in respect of any Government entity express or implied representation, warranty, agreement or guaranty made (i.e., or claimed to have been made) by the liability is Sellers or any of their respective Affiliates or imposed or asserted to be imposed by operation of law as regards any products sold by the Government entity); (x) any liability of Seller under this Agreement Business or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after Sellers prior to the Closing Date.Closing;

Excluded Liabilities. Purchaser shall Except for the Assumed Liabilities specifically set forth in Section 2.6, Buyer is not assume assuming, and shall not be responsible the Assumed Liabilities expressly exclude, any accounts payable, other debt, liability, duty or obligation, whether known or unknown, fixed or contingent, of Seller, including, without limitation, any liabilities or obligations related to pay, perform the Products or discharge any the Business which are outstanding or unpaid as of the following Liabilities date hereof or obligations connected in any way with any retirement, medical, life, disability or other employee benefit plan or employment, severance or change of control arrangement of Seller or PGT-UK (collectively, the “Excluded Liabilities”): ). Without limiting the foregoing, all liabilities, including any liabilities for Taxes, arising from or related to: (i) Liabilities Seller’s or PGT-UK’s operations, whenever arising or [ ***] Indicates information has been omitted and separately filed with the Securities and Exchange Commission pursuant to an application for an order declaring confidential treatment thereof. incurred, or Seller’s or PGT-UK’s ownership of the Products and Acquired Assets through the Closing Date; (ii) Seller’s or PGT-UK’s termination of any Contracts relating to the Business which are not Transferred Contracts; (iii) any Employee hired by Buyer that accrues or arises as of or prior to the Closing Date, or any of Seller’s or PGT-UK’s other agents, consultants, independent contractors, employees or former employees, whenever arising, in each case including workers’ compensation, severance, salary, bonuses or under any Employee Plan, whether or not any such employees shall accept employment with Buyer in connection with the transactions contemplated hereby; (iv) the Products or the Business and arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (iiv) any liability arising out Benefits Liabilities; and (vi) any implied or explicit warranty obligations of any Action pending as of Seller with respect to the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing Products entered into prior to the Closing Date (includingexcept as described in Section 2.6(c)), without limitation, accrued sales taxes); (iv) liabilities for Taxes of shall be Excluded Liabilities and shall remain the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability responsibility of Seller having to do with a business other than and PGT-UK, except as otherwise specifically included within the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateAssumed Liabilities.

Excluded Liabilities. Purchaser Anything herein to the contrary notwithstanding, other than the Assumed Liabilities, Buyer does not assume any of the liabilities or obligations of Seller, all of which are retained by Seller. Buyer shall not assume and shall not or be responsible obligated to pay, perform or otherwise discharge any obligation or liability of Seller, including without limitation any relating to the following Liabilities Business, direct or indirect, known or unknown, absolute or contingent, not expressly assumed by Buyer pursuant to this Agreement or the Assignment and Assumption Agreement (all such obligations of Seller (collectivelyand liabilities not being assumed, the “Excluded Liabilities”): ). Such Excluded Liabilities specifically include, but are not limited to, the following liabilities or obligations of Seller: (i) Liabilities any liability for any and all federal state and local Taxes relating to periods prior to the Closing Date; for purposes of this Agreement “Taxes” include all amounts owed to the federal government, or arising out any state or local government; (ii) any liability under any currently pending or past litigation or administrative proceedings of any kind; (iii) any liability for personal injury or property damage that relates to the ownership Business and occurred on or leasing of the Purchased Property prior to the Closing Date; (iiiv) any liability arising out under products liability, strict liability, or express or implied warranty claims relating to products manufactured or sold by Seller; (v) any trade payable, debt to, or loan or line of credit from, any party, other than the Assumed Liabilities or in excess of the amount shown on Schedule 2.1(b); (vi) any accrued and unpaid salaries or wages, independent contractor fees, vacation pay, sick pay, and/or paid time off of any Action pending as employee, officer, member, and/or manager of Seller, and/or any employee benefit plan accruals of any kind; (vii) any of Seller’s possible claims, demands, losses, fees, licenses, fines, penalties, Taxes, interest and other liabilities owed to any federal, state or local governments; (viii) any risk of loss to any of the Assets on or prior to the Closing DateDate or obligation undertaken by or reserved to Seller in this Agreement; (iiiix) Liabilities any claims by owners or former owners against Seller for Taxes unreturned capital contributions or loans, except as and only to the extent expressly payable by Buyer pursuant to this Agreement; (x) any liabilities of Seller Parties hereunder, (xi) any liabilities related to any violation of law or any action by any governmental authority, and (xii) all unknown liabilities of Seller and all liabilities of Seller relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes any of the Seller, whether Excluded Assets or contracts not relating assigned to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateBuyer hereunder. 5 3.

Excluded Liabilities. Purchaser Notwithstanding any provision in this Agreement to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other Liability of any Seller Party or its Affiliates of whatever nature, whether presently in existence or arising hereafter. All such other Liabilities shall not assume be retained by and remain Liabilities of such Seller Party or its Affiliates. The term Excluded Liabilities shall not be responsible to pay, perform mean all Liabilities of the Seller Parties or discharge any of their respective Affiliates other than the following Liabilities or obligations Assumed Liabilities. For the avoidance of Seller (collectivelydoubt, the “Excluded Liabilities”Liabilities shall include (but are not limited to): (ia) all Liabilities relating to or arising out of or relating to the ownership or leasing return of the Purchased Property any Product shipped by Seller to a third party prior to the Closing Date; (which, for the avoidance of doubt, shall include any such Product that is reflected in the accounts receivable transferred to Buyer pursuant to Section 2.01(j)) (“Shipped Product”) but only if (i) such return is in accordance with Seller’s written return policy as in effect on the date hereof, which policy is set forth on Schedule 2.04(a) of the Seller Disclosure Schedule, or (ii) any liability Buyer provides reasonable evidence indicating that the customer returning such Shipped Product believes it is entitled to such return; (b) subject to Section 2.03(a)(i), all Liabilities arising out of any Action pending as of action, suit, investigation or proceeding before any court or arbitrator or any other Governmental Authority solely to the Closing Date; (iii) Liabilities for Taxes relating to or extent arising out of the Focus Factor Business accruing actions, omissions or events occurring prior to the Closing Date relating to the Business or the Transferred Assets, including with respect to matters set forth on Schedule 2.04(b) of the Seller Disclosure Schedule; (includingc) any Liability under Seller’s employee benefits or compensation arrangements, plans or agreements, or otherwise with respect to any employee or former employee of Seller or any of its Affiliates relating to any period of employment with Seller or any of its Affiliates, or any Liability under Seller’s or its Affiliate’s severance plans or policies (including without limitation, accrued sales taxeslimitation the plans listed on Schedule 2.04(c) of the Seller Disclosure Schedule); (ivd) liabilities for Taxes of the Seller, whether or not relating to or any Environmental Liabilities; (e) all accounts payable arising out of the Focus Factor business and whether or not incurred prior to the Closing dateand due and owing by Seller to any third party; (f) any and all Liabilities of the Seller Parties for Taxes, including, without limitation, including (i) any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half arising as a result of the operation of the Business or the leasing, ownership, operation or use of the Transferred Assets prior to the Closing, (ii) all Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed Taxes 15 CONFIDENTIAL TREATMENT HAS BEEN REQUESTED incurred in connection with the transactions contemplated by this Agreement, and (5) Apportioned Obligations apportioned to the Pre-Closing Tax Period pursuant to Section 7.02(b); and (xig) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateLiability relating to an Excluded Asset. Section 2.05.

Excluded Liabilities. Purchaser shall not assume Other than the Assumed Liabilities, all liabilities, liens and shall not be responsible to pay, perform or discharge any of the following Liabilities or other obligations of Seller Sellers or any affiliates of Sellers or the Shareholder relating to the Business or the Purchased Assets arising prior to the Closing Date (collectively, the “Excluded Liabilities”): ), shall remain the sole responsibility of and shall be retained, fully paid, fully performed and fully discharged solely by Sellers. Excluded Liabilities shall include, without limitation: any debts, liabilities or obligations not specifically listed in Schedule 1.2(a), including (i) Liabilities relating any liability of Sellers for income, transfer, sales, use, and all other taxes arising in connection with the consummation of the transactions contemplated hereby (including any income taxes arising because Sellers are transferring the Purchased Assets), whether imposed on Sellers as a matter of law, under this Agreement or otherwise; (ii) any liability of any Seller for taxes, including taxes of any person other than such Seller; (iii) any liability of a Seller with respect to any indebtedness for borrowed money or credit card payables; (iv) any liability of a Seller arising out of any threatened or pending litigation or other claim; (v) any liability, whether arising by operation of law, contract, past custom or otherwise, for unemployment compensation benefits, pension benefits, salaries, wages, bonuses, incentive compensation, sick leave, severance or termination pay, vacation and other forms of compensation or any other form of employee benefit plan (including the health benefits payable reflected on Sellers’ balance sheet), agreement (including employment agreements), arrangement or commitment payable to or for the benefit of any current or former officers, directors and other employees and independent contractors of Sellers; (vii) any liabilities of Sellers to the Shareholder or any affiliates of the Shareholder or any current or former shareholder in connection with this Agreement or any transactions contemplated hereby; (viii) any liability related to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by SellerExcluded Assets; (ix) any negative cash or book balances or any intercompany debt by and between, or by and among, Sellers and any affiliate of Sellers; and (x) any environmental liability to any Governmental entity arising out of or resulting from Seller’s compliance relating to the operation of the Business or noncompliance with Sellers’ leasing, ownership or operation of real property. All Excluded Liabilities shall be the responsibility of Sellers, and Sellers and the Shareholder, jointly and severally, agree to indemnify and hold Buyer harmless against any lawExcluded Liabilities, regulationdebts, orderobligations, injunctionclaims or damages therefrom, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; costs and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Dateexpenses.

Excluded Liabilities. Purchaser It is understood and agreed that Buyer shall not assume or be liable for (i) any Transaction Expenses that remain unpaid or are incurred by Seller or Holding Company following Closing, (ii) third party costs and shall not be responsible expenses incurred by Seller relating to pay, perform the negotiation or discharge any consummation of the following Liabilities Transactions (including the winding-up, liquidation and dissolution or obligations Seller) and the preparation and filing of Seller’s final income tax returns, including without limitation, fees and expenses of counsel, accountants or investment bankers, (iii) any federal, state, county or local taxes of Seller (including any liability under Section 280G or 4999 of the Code), (iv) any liabilities of Seller for federal, state, county or local income taxes on the Purchase Price, (v) any liability or obligation of Seller under the Excluded Contracts, (vi) any liabilities under any Employee Benefit Plan maintained, administered or contributed to by Seller other than liabilities and obligations under the Split Dollar Arrangements, (vii) any liabilities related to accrued vacation or paid time off owing to employees, independent contractors or other persons, including Former Seller Employees, which Seller shall be permitted to payout prior to Closing, (viii) any liability relating to any Wrongful Acts of Seller or Holding Company, (ix) any liabilities related to or arising out of the Excluded Assets; or (x) any liabilities related to Securities Claims (collectively, the “Excluded Liabilities”): ). Notwithstanding the foregoing, the parties elect the “alternate procedure” pursuant to IRS Revenue Procedure 2004-53, 2004-2 C.B. 320, and agree that Buyer shall be considered a “successor employer” for employment Tax purposes and that Buyer shall assume responsibility for filing all employment Tax Returns (iincluding for any activity in “pre-Closing” periods) Liabilities relating to or arising out of for the ownership or leasing of the Purchased Property prior to year in which the Closing Dateoccurs; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.and

Excluded Liabilities. Except for the Assumed Liabilities, the Purchaser shall will not assume and shall not be responsible to payacquire any interest in, perform or discharge obligations in respect of, any Liabilities of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): ). The Excluded Liabilities include: (i) any Liability in respect to Excluded Taxes, (ii) all Liabilities with respect to any indebtedness for borrowed money of the Seller, (iii) all Liabilities arising out of or relating to the Seller’s employment, engagement, potential employment or engagement or termination of employment or engagement of any Person, (iv) all Liabilities arising out of, relating to or in respect of the Acquired Contracts to the extent such Liabilities (A) but for a breach or default by the Seller, would have been paid, performed or otherwise discharged in accordance with their terms prior to the Closing, (B) arise out of a breach or default by the Seller prior to the Closing or (C) otherwise arise from or relate to any act, omission, occurrence or period of time prior to the Closing, (v) all accounts payable or accrued expenses of the Seller except for Purchaser’s Prorated Portion of expenses and costs set forth in the Proration Schedule, (vi) all Liabilities arising out of or relating to any Employee Benefit Plan, (vii) all Liabilities arising prior to Closing out of the ownership or leasing of the Purchased Property Assets or operation of the Business, (viii) any Liability of the Seller arising out of or under this Agreement, (ix) any broker fees of the Seller, (x) all Liabilities arising out of or relating to the Excluded Assets; (xi) all Liabilities of Seller arising from or relating to the DRL Purchase Agreement (other than any Liabilities with respect to the Partially Assigned APA that are expressly assumed by Purchaser pursuant to the Assignment and Assumption Agreement Regarding DRL Contracts); and (xii) all Liabilities arising out of or relating to any product liability, breach of warranty or similar claim for injury or other harm to person or property (regardless of whether such claim is first asserted prior to, on or after the Closing Date), which result from the use or misuse of Products sold on or prior to the Closing Date; (ii) any liability arising out of any Action pending as of Date or otherwise related to the Closing Date; (iii) Liabilities for Taxes relating to Products sold on or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not including all Legal Proceedings relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entitysuch liabilities); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser shall Other than the Assumed Liabilities, Buyer is not assume and shall not be responsible to pay, perform assuming any liability or discharge any of the following Liabilities or obligations obligation of Seller or the Selling Person of any nature, whether absolute, accrued, contingent, liquidated or otherwise, and whether due or to become due, asserted or unasserted, known or unknown (collectively, “Liabilities”), including, without limitation, those Liabilities set forth below (collectively, the “Excluded Liabilities”): (ia) Liabilities in respect of any of the Excluded Assets; (b) Liabilities, including any Proceeding or other third Person claim, relating to or arising from the activities or operation of the Business with respect to any period of time (or portion thereof) occurring prior to the Closing; (c) Liabilities relating to Indebtedness or intercompany payables of Seller; (d) Liabilities relating to loans or payables by Seller to the Selling Person or other Liabilities of Seller to the Selling Person; (e) Liabilities of Seller or its direct or indirect owner(s) relating to (i) Taxes for any taxable period, whether assessed before or after the Closing Date; (ii) Taxes arising out in connection with the consummation of the ownership transactions contemplated by this Agreement; (iii) unpaid Taxes of any other Person under Treasury Regulation Section 1.1502-6 (or leasing any similar provision of state, local or foreign Law) or as a successor or transferee by contract or otherwise; (iv) payments to any Person under any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or similar agreement with respect to Taxes; or (v) any other Taxes for which Seller or the Purchased Property Selling Person is responsible under Section 4.4 or Section 4.5; (f) Liabilities related to Seller’s or the Selling Person’s transaction fees and expenses contemplated in Section 4.2 or otherwise; 4 (g) any undisclosed Liability; (h) Liabilities incurred other than in the ordinary course of Seller’s business, consistent with past practice; (i) Liabilities related to any Employee Benefit Plans; (j) Liabilities related to premiums for officer’s life insurance policies that are in place immediately prior to the Closing Date; (iik) any liability arising out all Liabilities for breach of any Action pending as of warranty (whether covered by insurance or not) with respect to services rendered prior to the Closing Date; (iiil) Liabilities for Taxes relating to any current or arising out former Staff Employee, Temporary Personnel or Billable Staffing Independent Contractor or current or former group of the Focus Factor Business accruing prior Staff Employees, Temporary Personnel or Billable Staffing Independent Contractors, including any change of control or severance Liabilities, except to the Closing Date (including, without limitation, extent accrued sales taxes)for as current Liabilities in Adjusted Net Working Capital; (ivm) liabilities for Taxes Liabilities related to any Real Property, except any Liabilities of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made specifically assumed pursuant to this and in accordance with the Lease Assignment Agreements or the Nashville Lease Agreement; (vn) any deferred Taxes Liabilities of any nature; (vi) one-half of the Transfer TaxesZycron Latin America, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of SellerZycron Memphis, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any lawInc., regulationZycron Europe Limited and International Consulting Enterprises, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this AgreementLLC; and (xio) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.other Liability that is not an Assumed Liability. 1.5

Excluded Liabilities. Except for the Assumed Liabilities, Purchaser shall -------------------- does not assume or agree to pay any liability or obligation of Sellers, direct or indirect, known or unknown, absolute or contingent, contractual or otherwise, including, without limitation, liabilities, obligations or responsibilities under Environmental Laws (all such liabilities not being assumed by Purchaser being referred to herein as the "Excluded Liabilities"). Sellers shall remain responsible for the Excluded Liabilities and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior indemnify Purchaser with respect thereto to the Closing Date; (ii) extent provided in Section 10.2 hereof. Without in any liability arising out of any Action pending manner limiting the foregoing, it shall be expressly understood that, except as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date otherwise expressly provided in this Agreement (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes Section 2.1 of the SellerDisclosure Schedule), whether Purchaser shall not at the Closing assume (a) any obligation under any employee benefit or not welfare plan sponsored in whole or in part by the Sellers and relating to the Newspapers (including but not limited to worker's compensation and other health and welfare plans) other than the Xxxxxx Sun Pension Plan, and if Purchaser elects to assume Sellers' obligations and duties with respect thereto, in the manner prescribed in Section 2.1(d) of this Agreement, the Xxxxxx Sun Funded Group Life Insurance Plan, (b) any federal, state or arising out local tax liability of the Focus Factor business Sellers relating to the Newspapers or the Purchased Assets, including, but not limited to sales and whether use taxes (other than sales or not incurred use taxes attributable to the consummation of the transaction contemplated by this Agreement, which shall be Purchaser's sole responsibility), (c) any liability relating to accrued payroll (including commissions, carrier tips, benefit plan contributions and accrued payroll taxes) and severance and related benefits with respect to work performed prior to the Closing dateDate, includingor from terminations of employment on or prior to the Closing Date, without limitationexcept terminations made upon Purchaser's prior written request, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (viid) any liability of Seller having Sellers under any collective bargaining agreement, employment agreement, newsprint purchase contract, insurance policy, automobile lease or other contract, lease, permit, license or other authorization which Purchaser does not elect pursuant to do with a business other than the Focus Factor Business; Section 1.2 hereof to assume at Closing, (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ixe) any liability to any Governmental entity retiree or former employee of Sellers except for liabilities arising under the Xxxxxx Sun Pension Plan or the Lowell Sun Funded Group Life Insurance Plan, or except for liabilities relating to health and/or dental insurance benefits for certain employees listed on Exhibit L to this Agreement as described in Section 2.1. of the Disclosure Schedule, (f) any deferred compensation or supplemental retirement liability to any present or former officer or senior executive of Sellers, except such liabilities, if any, as may be expressly described in Section 2.1 of the Disclosure Schedule relating to Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx, (g) any liabilities of Sellers for retroactive premium adjustments for Worker's Compensation insurance attributable to Worker's Compensation insurance attributable to work performed prior to the Closing Date by employees of the Newspapers, (h) any liability described in Section 2.1(e) of this Agreement as potentially to be described in Section 2.1 of the Disclosure Schedule which is not in fact described in that section of the Disclosure Schedule, or (i) any other liability arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) the operations of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after Newspapers prior to the Closing Dateor arising prior to the Closing with respect to the Purchased Assets.

Excluded Liabilities. Purchaser shall (i) the long-term debt and capital lease obligations of Seller, including the current portion thereof and accrued interest payable thereunder, described on Schedule 2.5(a)(i) (other than the Discretionary Assumed Debt), (ii) all Contracts entered into outside the ordinary course of business by Seller that are in existence on the Effective Date that are not listed on Schedule3.18, (iii) all Contracts entered into outside the ordinary course of business by Seller after the Effective Date and on or before the Closing Date which Buyer has not agreed to assume and shall not be responsible in writing or otherwise pursuant to paythe terms of this Agreement, perform or discharge (iv) liabilities associated with any of the following Liabilities Excluded Assets, (v) liabilities associated with Seller’s provider agreements with the Medicare program, (vi) liabilities associated with the Excluded Physician Contracts, (vii) liabilities associated with any Contract with a physician or obligations physician group, an Immediate Family Member of a physician on the medical staff of any Hospital, or any Person that provides marketing services for Seller (in each case, which Contract is not among the Excluded Physician Contracts), other than liabilities of Seller to the counterparty to any such Contract which relate to or arise in connection with Seller’s obligations to perform under such Contract and (collectivelyviii) liabilities associated with the DMC Non-ERISA 403(b) Retirement Plan. Excluded Physician Contract: any Contract with a physician or physician group, an Immediate Family Member of a physician on the “Excluded Liabilities”): medical staff of any Hospital, or any Person that provides marketing services for Seller that is (i) Liabilities relating not listed on Schedule 3.18, (ii) identified by counsel to or arising out of the ownership or leasing of the Purchased Property Buyer, acting reasonably and in good faith, in a written notice delivered to Seller within 30 days prior to the Closing Date; , as a Contract that Buyer will not assume or (iii) entered into with a physician or physician group, without the written consent of Buyer, after the receipt by Seller of the written notice described in subsection (ii) any liability arising out of this definition. Expended: capital expenditures will be deemed “Expended” for purposes of the CapEx Commitment and the Anniversary Date CapEx Commitment if (a) Buyer, its Affiliates or a third party acting at the direction of Buyer has actually expended such capital or (b) to the extent of the value of any Action pending building materials, products and supplies relating to a capital project described on Schedule 12.4 or that has otherwise been approved in writing by DMC that have been delivered to any of the Hospital Businesses or work that has been performed on any capital project that has not yet been paid for by Buyer, its Affiliates or such third party. Financial Statements: the Audited Financial Statements and the Unaudited Financial Statements. Force Majeure: any period or periods of delay caused by reason of strikes, lockouts or other labor disputes; war or civil disorders; acts of any Governmental Authority (such as, and similar to, changes in Legal Requirements constituting a moratorium imposed against capital projects of the type included within the Specified Capital Projects), excluding acts of any Governmental Authority resulting or arising from the acts or omissions of Buyer; fire or other casualty; acts of God such as storms, floods or other inclement weather; terrorism, riots, insurrection or demonstrations; and shortages of materials that impact construction projects on a national basis or a regional basis that affects and includes Detroit and southeast Michigan. Governmental Authorities: all agencies, authorities, bodies, boards, commissions, courts, instrumentalities, legislatures and offices of any nature whatsoever of any federal, state, county, district, municipality, city, foreign or other government or quasi-government unit or political subdivision. Government Payment Programs: federal and state Medicare, Medicaid and TRICARE plan programs, and similar or successor programs with or for the benefit of Governmental Authorities. Xxxx-Xxxxxx Act: the Public Health Service Act, 42 U.S.C. 291, et seq. Hired Employees: those employees of Seller who accept Buyer’s offer of employment as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out Date and those employees of the Focus Factor Business accruing prior to Seller employed by Buyer as of the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Datewritten Assumed Contracts.

Excluded Liabilities. Notwithstanding anything to the contrary contained herein, except for the Assumed Liabilities and Purchaser’s obligations and covenants under this Agreement or the Purchaser Ancillary Documents, Purchaser shall not assume and shall not be responsible or have any liability or obligation whatsoever with respect to pay, perform or discharge any of Sellers’ obligations, liabilities, contracts, debts, claims, costs, expenses, agreements or understandings, of any kind or nature whatsoever at any time existing or asserted, whether or not accrued on Sellers’ financial statements or recorded in their books and records, whether fixed, contingent or otherwise, whether known or unknown to Purchaser and/or Sellers, whether arising prior to, at or after the following Liabilities Effective Time and whether or obligations not relating to the operation of Seller the Business or Sellers’ ownership or use of the Purchased Assets (collectively, the “Excluded Liabilities”): ). Without limiting the generality of the foregoing, the Excluded Liabilities include the following liabilities and obligations: 15 (i) Liabilities relating under any Contract to which any Seller is a party or by which they, the Business or the Purchased Assets are bound that is not assumed by Purchaser under Section 2.3(a), including any liability or obligation (A) arising out of the ownership or leasing of the Purchased Property prior relating to the Closing DateSellers’ credit facilities or any security interest related thereto; (B) under any Excluded Termite Contract, or (C) under any Employment Agreement; (ii) except as provided in any liability of Sections 3.3, 3.4 or 6.10, for Taxes, including (A) any Taxes arising out as a result of any Action pending as Sellers’ operation of the Closing Date; (iii) Liabilities for Taxes relating to Business or arising out ownership of the Focus Factor Business accruing Purchased Assets prior to the Closing Date Effective Time, (including, without limitation, accrued sales taxes); (ivB) liabilities for any Taxes that will arise as a result of the Seller, whether or not relating to or arising out sale of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made Assets pursuant to this Agreement; Agreement and (vC) any deferred Taxes of any nature; (viiii) one-half of except for the Transfer TaxesAssumed Liabilities, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity all liabilities and obligations arising out of or resulting from Seller’s compliance (A) actual or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment alleged acts or award (an “Order”) omissions of any Government entity (i.e.Seller, the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement their Affiliates or any other document executed of their respective officers, employees or agents in connection with the transactions contemplated by this Agreement; and operation of the Business or ownership of the Purchased Assets prior to the Effective Time, or (xiB) any casualty damage, event or condition in respect of any Seller, the Purchased Assets or the Business existing or occurring prior to the Effective Time, regardless of whether such act, omission, event or condition was known by or disclosed to Purchaser or its Affiliates or constitutes a breach of a representation, warranty or covenant of Sellers contained herein, in either case to the extent same gives rise to any liabilities that exceed the amount included as a liability in the determination of the Net Asset Value of Sellers at Closing in respect of such act, omission, event or condition; (iv) arising under or resulting from any Seller based on Seller’s actions Benefit Plan, ERISA Affiliate Plan, or omissions occurring after any payroll practice of Sellers; (v) under all accounts payable owing to, and other rights of payments owing to, Affiliates of Sellers; or (vi) arising out of or relating to any action, claim, suit or proceeding against the Closing Date.Business that is pending or threatened as of the Effective Time and identified in Schedule 4.10. 2.4

Excluded Liabilities. Purchaser shall not assume All other liabilities and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller and any and all of its Affiliates (collectivelyas hereinafter defined), whether or not related to the Purchased Assets, which are not expressly assumed by Purchaser pursuant to Section 2.1 (the “Excluded Liabilities”): ) shall be retained, paid and discharged by Seller in a fashion that is sufficiently timely as to not adversely affect the Purchased Assets, the relationship of Purchaser with the counterparties to the Contracts, Third-Party Licenses or the ABQ Lease or with the Transferred Employees (ias herein defined), and none of the Excluded Liabilities shall be assumed or discharged by Purchaser. Excluded Liabilities include, but are not limited to, (a) Liabilities any liabilities of Seller (as used in this Section 2.2 only, the term “Seller” shall be deemed to refer to Seller and each of its Affiliates) relating to Seller’s other businesses and operations other than the Acquired Business, (b) any liabilities of Seller to or arising out of relating to Seller’s former or current employees or consultants (including employees or consultants terminated by Seller in connection with the ownership or leasing sale of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxesAssets); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, compensation, bonus, severance, vacation, paid time off, workers compensation, employee benefits or otherwise) or any Taxes payable by other fee or wage payment of any kind or nature, including but not limited to, any payments under the Seller resulting from payments made pursuant to this Agreement; Consolidated Omnibus Budget Reconciliation Act of 1985 or any disability or unemployment insurance policies, (vc) any deferred Taxes enforcement, compliance or other liabilities of Seller arising under federal, state or local laws, rules or regulations, including, without limitation, health care regulatory, labor and environmental laws, (d) any nature; liabilities of Seller arising from any litigation, arbitration or administrative proceeding to which Seller is or may be made a party or any contract, tort or equitable claims against Seller, (vi) one-half of the Transfer Taxes, if applicable; (viie) any liability of Seller having for Taxes (as herein defined), (f) any account or trade payable of the Seller except for obligations listed on Schedule 3.5(a) and then only in the specific amounts listed in Schedule 3.5(a), (g) any liabilities or obligations of Seller (i) except as is specifically provided herein on Schedule 3.5(a), under any contract, instrument or agreement arising or accruing for any period prior to do with a business the Effective Time, including without limitation performance penalties, or (ii) arising or accruing after the Effective Time under any contract, instrument or agreement other than the Focus Factor Business; ABQ Lease, the MCTM Customer Agreements, the Web Hosting Agreements or (viiito the extent validly assigned to Purchaser at the Closing) any liability with respect to any Employee Third-Party License or former employee of SellerThird Party Agreement, or any consultant retained by Seller; (ixh) any liability to any Governmental entity arising out of liabilities or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability obligations of Seller under this the Master ASP Agreement (as herein defined) that are not released pursuant to Section 3.5(b), (i) any claims or proceedings against Seller arising under federal or state securities laws, rules or regulations, (j) any other document executed in connection with claims related to the transactions contemplated ownership or alleged infringement on the rights of others of any intellectual property owned or used by this Agreement; Seller that arise or accrue at any time prior to the Effective Time, and (xik) any liability and all claims or assertions of Seller based on Seller’s actions or omissions occurring after any of the Closing Dateforegoing.

Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, except for the Assumed Liabilities in Section 2.5(a), Seller shall retain and remain exclusively liable for any Liabilities of Seller, whether or not disclosed to Purchaser on any Schedule hereto, and Purchaser shall not assume and or in any way be liable therefor. Without limiting the generality of the foregoing, except as expressly provided in Section 2.5(a), Purchaser shall not be responsible to payassume, perform or discharge and Seller shall retain and remain exclusively liable for, any of the following Seller’s Liabilities arising out of or constituting any and all: (i) Indebtedness; (ii) accrued interest related to Indebtedness; (iii) forms of payables or other Liabilities to Seller or any Affiliates thereof; (iv) capital leases on any equipment that is not a Purchased Asset; (v) obligations as guarantor of another’s debts or obligations; (vi) Liabilities of Seller (collectivelyor any of its Affiliates) for any Taxes, whether historical, current or deferred Taxes, and any related Tax matters; (vii) environmental or litigation matters; (viii) Liabilities arising out of employee or benefit matters, including my Employee Benefit Plans or Benefit Arrangements; (ix) outstanding obligations relating to agreements with former employees of Seller or any Affiliate thereof; (x) contingent Liabilities; (xi) Contracts that are not Assumed Contracts; (xii) Liabilities under any Assumed Contracts which arise after the Closing but which arise out of or relate to a breach of such Contract by Seller occurring prior to the Closing; (xiii) Liabilities to be borne by Seller hereunder (including any legal or other fees or expenses arising out of this Agreement or the transactions contemplated hereby); (xiv) Proceedings, whether or not related to the Business, existing on the Closing Date, including those listed in the Schedules hereto; (xv) actions or omissions of Seller, any predecessor of Seller or any former or current employees of Seller or any Affiliate thereof; (xvi) Liabilities that were incurred or are related to any business of Seller other than the Business; or (xvii) Liabilities that were not incurred directly in connection with the operations of the Business. All Liabilities that are not to be assumed by Purchaser pursuant to this Section 2.5(b) are collectively referred to as the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser shall Except as expressly set forth in this Agreement, Buyer does not assume and shall will not be responsible to pay, perform or discharge liable for any of the following Liabilities direct or indirect debts, Claims, Interests, Encumbrances, obligations or liabilities of Seller, any Affiliate of Seller, the Business, or any Member, whenever arising and of whatever type or nature. In particular, but without limiting the foregoing, Buyer will not assume, and will not be deemed by anything contained in this Agreement (other than to the extent expressly provided in Section 1.3 above) to have assumed and will not be liable for any debts, obligations or liabilities of Seller, any Affiliate of Seller or the Business whether known or unknown, contingent, absolute or otherwise and whether or not they would be included or disclosed in financial statements prepared in accordance with GAAP (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out ). Without limitation of the ownership foregoing, the Excluded Liabilities include debts, Claims, Interests, Encumbrances, liabilities and obligations: (a) under any real estate lease or leasing any contract or agreement to which Seller is a party or by which Seller or the Business is bound that is not, as of the Purchased Closing Date, listed as an Assigned Contract on Schedule 4.17 or any Personal Property Lease by which Seller or the Business is bound that has not been listed as an Assigned Personal Property Lease on Schedule 4.8; (b) with respect to any Assigned Contract or Assigned Personal Property Lease, arising from the period prior to the Closing Date; (iic) any liability arising out of any Action pending as arrangements, agreements, understandings or commitments (including any collective bargaining agreements) with or on behalf of any employees or independent contractors providing professional medical or nursing services to the Business to which Seller is a party or by which Seller is bound from the period prior to the Closing Date; (iiid) Liabilities for Taxes relating to or arising out of Seller’s obligation under the Focus Factor CBA or otherwise required under the National Labor Relations Act to engage in effects bargaining with the Union; (e) for, or relating to, any Employee Benefit Plan; (f) for any obligation for Taxes from the period prior to the Closing Date; (g) for any liability for local or state sales, use or transfer tax and taxes that may be imposed upon the sale or assignment of the Acquired Assets pursuant to this Agreement and the Assignment and Assumption and Xxxx of Sale from the period prior to the Closing Date; (h) for any damages or injuries to persons or property or for any malpractice, tort or strict liability arising from events, actions or inactions in the Business accruing or the operation of the Business prior to the Closing Date; (i) arising out of any litigation arising with respect to the period prior to the Closing Date, whether or not threatened or pending on or before the Closing Date; (j) incurred by Seller or the Business for borrowed money from the period prior to the Closing Date or that otherwise constitute Indebtedness (including, without limitation, accrued sales taxesincluding the Prepetition Loan Facilities); (ivk) liabilities for Taxes any accounts payable of Seller or any Affiliate of Seller from the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred period prior to the Closing dateDate; and (l) for amounts due or that may become due to Medicare, includingDCM or any other health care reimbursement or payment intermediary, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes or other third-party payor on account of any nature; (vi) onepayment adjustments attributable to any period prior to the Closing Date, or any other form of Medicare or other health care reimbursement recapture, adjustment or known overpayment whatsoever, or any violation of any Law by Seller relating to Medicare, DCM or any other payor program, Case 14-half 00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 11 of the Transfer Taxes111 692183/15/PHOENIX including fines and penalties, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability period prior to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date. The intent and objective of Buyer and Seller is that, except for liabilities explicitly assumed by Buyer hereunder, Buyer does not assume, and no transferee liability will attach to Buyer pertaining to, any of the Excluded Liabilities.

Excluded Liabilities. Except for assumption at the Closing of the Assumed Liabilities, the Purchaser shall does not assume (either expressly or implicitly) and shall not be responsible to pay, perform or discharge liable for any of the following Liabilities debts, claims, obligations, expenses, litigation, violations, penalties, assessments, losses, damages or obligations other liabilities of Seller (collectivelyany of the Sellers or any of their Affiliates, of any kind, character or description whatsoever, whether presently in existence or arising hereafter, direct, indirect, known or unknown, absolute or contingent and regardless of any disclosure to the “Excluded Liabilities”): Purchaser, including (i) Liabilities relating to or arising out of any accounts payable (including all invoices for the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending September Consortium that have not yet been received as of the Closing Date; ) and any intercompany payables arising prior to the Closing, (ii) any indebtedness of the Sellers, (iii) Liabilities for any Taxes relating to or arising out of the Focus Factor Business accruing prior to the Sellers for Pre-Closing Date (includingPeriods, without limitation, accrued sales taxes); (iv) any liabilities for Taxes of or obligations other than the SellerAssumed Liabilities as to which a third party might assert that Purchaser has transferee liability, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes liabilities or obligations of the Sellers or any nature; Affiliate of the Sellers to any of their consultants or employees, including liabilities or obligations for overtime, severance, accrued but unused vacation as of the Closing Date, bonuses under the Employee Benefit Plans attributable to the Pre-Closing Periods, (vi) one-half any and all liabilities under any of the Transfer TaxesSellers’ Employee Benefits Plans or under any employment agreements with any of the Employees, if applicable; and (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee liabilities or former employee of Sellerexpenses relating to, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance the operation of the CPMRC Business or noncompliance with ownership of the Transferred Assets prior to Closing, including those liabilities set forth in Section 2.8 of the Seller Disclosure Schedule and any lawamounts payable by Eclipsys to Xxxxxx X. Xxxxxxxx pursuant to the Eclipsys/CPMRC Merger Agreement, regulationincluding Section 1.5 thereof (collectively, order, injunction, judgment, decree, ruling, assessment or award (an “OrderExcluded Liabilities”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Notwithstanding anything to the contrary set forth herein, Purchaser shall not assume and shall be deemed not be responsible to payhave assumed, perform or discharge and the Sellers shall remain liable with respect to, any and all Liabilities of the following Sellers arising out of, relating to or otherwise in respect of the Business, the Employees, or the Purchased Assets prior to the Closing Date, and all other Liabilities or obligations of any Seller Entity, other than the Assumed Liabilities (collectively, the “Excluded Liabilities”). Without limiting the foregoing, for the avoidance of doubt, except to the extent that any of the following constitute an Assumed Liability, Purchaser shall not be obligated to assume, and does not assume, and hereby disclaims all of the Excluded Liabilities, including all of the following Liabilities of any Seller Entity (each of which shall constitute an Excluded Liability hereunder): (a) all Liabilities arising out of or relating to the Business, the Purchased Assets or the ownership, operation or conduct thereof; (b) all Liabilities for accrued expenses and accounts payable of the Business, other than the Assumed Accounts Payable; (c) all Liabilities arising out of any of the Excluded Assets, including Contracts that are not Purchased Contracts and any Title Defect Property or Environmental Defect Property that Purchaser elects to exclude from the Purchased Assets pursuant to Sections 8.17 and 8.18, as applicable; (d) all Environmental Liabilities and Obligations, based on facts, occurrences or conditions (i) Liabilities relating to first arising or arising out of the ownership existing on or leasing of the Purchased Property prior to the Closing Date; , or (ii) arising at any time at any properties other than the Real Property; provided, that nothing in this Agreement shall (A) release, nullify, or enjoin the enforcement of any liability arising out to a Governmental Body under Environmental Laws (or any associated liabilities for penalties, damages, cost recovery, or injunctive relief) that any entity would be subject to as the owner, lessor, lessee, or operator of any Action pending Real Property after the Closing Date, or (B) in any way diminish the obligations of the Sellers to comply with Environmental Laws consistent with their rights and obligations as debtors in possession under the Bankruptcy Code; (e) all Liabilities relating to any claims for infringement, dilution, misappropriation or any other violation of the rights of any third parties or caused by use of the Purchased Intellectual Property by a Seller Entity; (f) except as otherwise expressly provided in this Agreement with respect to Transfer Taxes and Periodic Non-Income Taxes, all Liabilities for any Taxes of any Seller Entity and all liability for Taxes in respect of the Purchased Assets that are attributable to any period, or portion thereof, before the Closing Date; (iiig) all Excluded Employee Liabilities; -29- (h) all Liabilities for Taxes relating arising as a result of any Legal Proceedings, whether initiated prior to or arising out of following the Focus Factor Closing Date, to the extent related to the Business accruing or the Purchased Assets on or prior to the Closing Date (includingDate, without limitationincluding any actions for breach of contract, accrued sales taxes)product liability or any tort actions; (ivi) liabilities for Taxes all Liabilities arising under any Indebtedness of the Seller, whether any Seller Entity or not relating any obligations or Liabilities to preferred or arising out common equityholders of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this AgreementEntity; (vj) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability all Liabilities with respect to any Employee costs, fees and expenses (including all legal, accounting, financial advisory, valuation, investment banking and other third party advisory or former employee of Seller, consulting fees and expenses) incurred by or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) on behalf of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed Entity in connection with or arising from the Bankruptcy Case or the transactions contemplated by this Agreement, the Ancillary Agreements and each other agreement, document or instrument contemplated hereby or thereby; (k) all Liabilities (i) existing prior to the filing of the Bankruptcy Case that are subject to compromise under the Bankruptcy Case, other than the Cure Costs, and (ii) to the extent not otherwise expressly assumed herein, incurred subsequent to the filing of the Bankruptcy Case and prior to the Closing; (l) all Liabilities relating to any theories of law or equity involving successors or transferees; (m) all Liabilities and obligations of any Seller under this Agreement, the Ancillary Agreements and each other agreement, document or instrument contemplated hereby or thereby or any Contract entered into in connection herewith or therewith; (n) all liability, warranty and similar claims for damages or injury to person or property and all other Liabilities, regardless of when made or asserted, to the extent arising out of or incurred in connection with the conduct of the Business, on or before the Closing Date; and (xio) any liability Legal Proceedings set forth on Section 5.11 of the Seller based on Seller’s actions or omissions occurring after the Closing Date.Disclosure Schedule. 2.5

Excluded Liabilities. Except for the Assumed Liabilities, Purchaser shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities liabilities or obligations of Seller Sellers or the Shareholder (collectively, the “Excluded Liabilities”): (i) Liabilities any liabilities or obligations arising out of or relating to Sellers’ ownership or operation of the Business and the Purchased Assets prior to the Closing; (ii) all liabilities and trade accounts payable of Sellers to third parties in connection with the Business incurred prior to the Closing; (iii) all liabilities and obligations arising under or relating to the Assumed Contracts arising prior to the Closing or relating to pre-Closing periods or arising from breaches by the Sellers or the Shareholder occurring prior to Closing; (iv) any liabilities or obligations relating to or arising out of the ownership Excluded Assets; (v) any liabilities or leasing of obligations for (i) Taxes relating to the Business, the Purchased Property prior to Assets or the Assumed Liabilities for any taxable period ending on or before the Closing Date or any portion of any Straddle Period ending on and including the Closing Date; , (ii) any liability arising out other Taxes of Sellers or any Action pending as stockholders or Affiliates of the Closing Date; Sellers for any taxable period, or (iii) Liabilities any liability for unpaid Taxes of a Seller or Shareholder as a transferee, successor, pursuant to Law, by contract or otherwise; (vi) any liabilities or obligations of Sellers or the Shareholder relating to or arising out of or under (1) any Benefit Plan or the Focus Factor Business accruing employment, or termination of employment, of any employee, including employee benefits, compensation or other arrangements or (2) workers’ compensation claims of any employee relating to periods prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicableClosing; (vii) any liability of Seller having to do with a business other than the Focus Factor BusinessTransaction Expenses; (viii) any liability with respect to any Employee Indebtedness of the Sellers or former employee of Seller, or any consultant retained by Sellerthe Shareholder; (ix) any liability liabilities or obligations of the Sellers to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award Related Person (an “Order”) of any Government entity (i.e., including the liability is imposed by the Government entityShareholder); (x) any liability liabilities or obligations (including Indebtedness) of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this AgreementShareholder; and (xi) any liability amounts due under any corporate credit cards of Seller any of the Sellers in the name of Xxxx Xxxxxx or Xxxxxx Xxxxxx or for which Xxxx Xxxxxx or Xxxxxx Xxxxxx have guaranteed the obligations of the Sellers; and (xii) any liabilities arising out of any receivables of the Sellers that were assigned prior to the Closing (including any claims from (1) any manufacturer or supplier for the failure of Sellers to pay amounts due in respect of products supplied in respect of such assigned receivables or (2) any Person to whom such receivables were assigned). For the avoidance of doubt, Purchaser is not assuming and its Affiliates (including Xxxxxx Xxxxxx, Xxxx Xxxxxx and their family members) are not forgiving the following (which shall remain obligations of Shareholder): (i) any and all employment or consulting fees due and owing to Xxxx Xxxxxx and Xxxxxx Xxxxxx by Shareholder and its Affiliates; (ii) any and all insurance benefits and reimbursements due and owing to Xxxx Xxxxxx, Xxxxxx Xxxxxx and their respective family members by Shareholder and its Affiliates; and (iii) any commissions or fees that may become payable to Xxxxxx Xxxxxx by Shareholder and its Affiliates (including Smart Acquisition Group, LLC) in respect of the potential acquisition of Purely Optimal. The Shareholder acknowledges that Xxxxxx Xxxxxx is entitled to a commission (based on Seller’s actions the Xxxxxx formula) upon consummation of the acquisition of Purely Optimal by the Shareholder or omissions occurring after the Closing Dateany of its Affiliates.

Excluded Liabilities. Purchaser The Buyer shall not assume only the Assumed Liabilities and all other liabilities and obligations of the Seller (the "Excluded Liabilities") shall be retained by Seller. Without limiting the foregoing, Seller acknowledges that the following liabilities and obligations (the "Excluded Liabilities") shall not be responsible to pay, perform or discharge any assumed by Buyer and shall be paid by Seller: (i) transactions of Seller occurring after the following Liabilities Closing or obligations of Seller incurred or arising after the Closing, (collectivelyii) liabilities or obligations of Seller arising out of or in connection with the Retained Businesses or the Excluded Assets, the “Excluded Liabilities”): (iiii) Liabilities relating any obligations of Seller for expenses, taxes or fees incident to or arising out of the ownership negotiation, preparation, approval or leasing authorization of this Agreement or the consummation of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing datetransactions contemplated hereby, including, without limitation, any Taxes all attorneys' fees and all brokers or finders fees or commissions payable by the Seller, (iv) any obligation of Seller resulting from payments made pursuant to under or arising out of this Agreement; , (v) any deferred Taxes liabilities against which Seller is insured or otherwise indemnified or which would have been covered by insurance (or indemnification) but for a claim by the insurer (or the indemnitor) that the insured (or the indemnitees) had breached its obligations under the policy of any nature; insurance (or the contract of indemnity) or had committed fraud in the insurance application, (vi) one-half any liability or obligation of the Transfer TaxesSeller to any past or present subsidiary or affiliate, if applicable; (vii) any liability liabilities or obligations, the existence of which constitute a breach of the representations, warranties or covenants of Seller having to do with a business other than the Focus Factor Business; contained in this Agreement, (viii) any liability or obligation arising out of or related to Seller's or the Business's failure to comply with all applicable laws, regulations, orders, judgments, decrees (or the failure so to comply of any affiliate of Seller) with respect to the Business, or the policies of any Employee third party payor on or prior to the Closing Date, including, but not limited to, any such violation or failure (or alleged violation or failure) under ss.ss.1320a-7, 1320a-7a, 1320a-7b or 139nn of Title 42 of the United States Code or the regulations promulgated thereunder, or similar state or local statutes or regulations, applicable statutes, regulations or ethical codes governing professional conduct, (ix) liabilities and obligations (whether fixed or contingent) with respect to employment, termination of employment, compensation or employee benefits of any nature (including, but not limited to the benefits to be provided under the Benefit Plans, as defined in Section 5.12) owed to any employee or former employee of Seller, Seller (or the beneficiary of any consultant retained by Seller; (ixemployee or former employee) any liability to any Governmental entity arising that arises out of or resulting from Seller’s compliance relates to the employment relationship between Seller and any such employee or noncompliance with any lawformer employee or the termination of such relationship, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability obligations or liabilities of Seller under this Agreement to indemnify its officers, directors, employees or agents, (xi) any other document executed liability, direct, indirect or contingent, for federal, state or local taxes, or interest or penalties thereon, imposed on Seller by reason of, or in connection with with, the transactions contemplated by this Agreement; , (xii) all federal, state, local, foreign and other governmental taxes imposed on Seller, including any tax of any other corporation which tax is assessed against Seller by virtue of its status, prior to the Closing Date, as a member of any consolidated group of which such other corporation was also a member, (xixiii) any liability of Seller based on Seller’s actions or omissions occurring after obligation under or related to the Closing Datelitigation described in Schedule 5.8, as well as any judgment, decision, appeal, remedy or settlement relating thereto or (xiv) any Environmental Liabilities, as defined below.

Excluded Liabilities. Other than the Assumed Liabilities specifically set forth in Section 2(d) above, Purchaser is not assuming any Liabilities of Seller or the Business, and Seller shall not assume retain and shall not be responsible to pay, perform or discharge any of the following for all such Liabilities or obligations of Seller and the Business (collectively, the “Excluded Liabilities”): ), including any of the following: (i) all Liabilities of Seller with respect to the activities of Seller that are not related to the Acquired Assets or the Business incurred or arising at any time; (ii) any Liabilities for tax, legal or other professional advisors advising Seller, and costs and expenses incurred in connection with this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby; and (iii) any Liabilities arising from or related to: (A) Seller’s and/or Veracity Network’s operation of the Business through the Closing Date, or Seller’s and/or Veracity Network’s ownership of the Acquired Assets prior to and through the Closing Date, other than Assumed Liabilities; (B) any Excluded Asset; (C) any Employee Liabilities; (D) any of Seller’s agents, consultants, independent contractors or other Employees, whenever arising, in each case including workers’ compensation, severance, salary, bonuses or under any Employee Plan; (E) claims for death, personal injury, property damage or consequential, punitive, or other damages relating to or arising out of any business conducted by Seller; (F) the ownership violation or leasing alleged violation by Seller of any Applicable Law, including but not limited to laws relating to civil rights, health, safety, labor, discrimination, and protection of the Purchased Property environment; (G) claims by creditors against Seller for anything other than Assumed Liabilities; (H) claims for customer prepayments or customer deposits (x) not transferred to Purchaser or (y) if transferred to Purchaser, relating to any period prior to the Closing; (I) claims against Seller relating to the disposal or arrangement for disposal by Seller of any Hazardous Materials at any site, location or facility (whether or not owned or leased by Seller); (J) any obligation of Seller to indemnify any Person; (K) Taxes of Veracity Network, or that relate to Seller’s and/or Veracity Network’s operation of the Business, or ownership of the Acquired Assets, for any taxable period (or portion thereof) ending on or before the Closing Date; and (iiL) any liability arising out Federal Communications Commission (“FCC”) regulatory fees or contributions to programs administered by or at the direction of any Action pending as the FCC, the Universal Service Administrative Company, or other FCC designee, including contributions to the Universal Service Fund, FCC regulatory fees, the TRS Fund, North American Numbering Plan Administration and Local Number Portability, relating to Seller’s and/or Veracity Network’s operation of the Business, and ownership of the Acquired Assets, through the Closing Date; (iii) . Excluded Liabilities for Taxes relating to or arising out of shall remain the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability sole responsibility of Seller having or others, as the case may be, and Purchaser shall not assume or be obligated to do with a business other than the Focus Factor Business; (viii) pay, perform, discharge or in any liability with respect to way be responsible for any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateExcluded Liability.

Excluded Liabilities. Purchaser shall Except as set forth in Section 2.1, and without implication that Buyer is assuming any liability not expressly excluded by this Section 2.2, Buyer is not assuming or undertaking to assume and shall not be responsible to pay, perform or discharge have no responsibility for any of the following Liabilities liabilities or obligations of Seller Seller, actual or contingent, past, present or future (collectively, the “Excluded Liabilities”): ), including, without limitation, (i) Liabilities relating any “current liabilities” reflected on Seller’s balance sheet; (ii) any liabilities for long-term debt or other “long term liabilities” reflected on Seller’s balance sheet; (iii) any liabilities for taxes; (iv) any liabilities for deferred compensation; (v) any liabilities with respect to compensation, commissions, bonuses, profit sharing, or arising out other compensation plans or programs; (vi) any retirement liabilities of Seller or liabilities of Seller under pension, savings, health care or other employee benefit plans or programs for Business employees; (vii) any severance liabilities; (viii) bank overdrafts; (ix) any liabilities incurred by Seller for legal, accounting, audit, investment banking, management consulting, brokerage, finder’s or other fees and expenses in connection with the ownership or leasing sale of the Purchased Property Assets or related negotiations; (x) any liabilities (including Superfund liabilities) for environmental contamination at or adjoining real estate owned, leased or operated by Seller, for regulatory noncompliance existing at the Closing Date (as defined below) or for off-site handling (including without limitation disposal) of wastes or, with respect to laws or regulations relating to protection of human health (including occupational safety) and the environment, for any noncompliance existing at or prior to the Closing Date; (iixi) any liability liabilities with respect to products of the Business manufactured, or services of the Business provided, before Closing; (xii) any liabilities for customer rebates incurred before Closing; (xiii) any liabilities of Seller under any leases, licenses, agreements or contracts, oral or written, other than the Assumed Contracts and the Software Licenses; (xiv) any liabilities arising out of or in connection with any Action violation of any Permit, Environmental Permit, law or governmental rule or regulation; (xv) any liabilities with respect to litigation or claims pending or threatened against Seller as of the Closing Date; (iiixvi) Liabilities for Taxes relating to any liabilities under any Federal or arising out state civil rights or similar laws, or the Worker Adjustment and Retraining Notification Act, as amended (the “WARN Act”), resulting from the termination of employment by Seller of employees of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable other employment action taken by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to employees of the Business; or (xvii) any Employee or former employee other liabilities of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection liabilities associated with the transactions contemplated by this Agreement; and (xi) any liability ownership or operation of Seller based on Seller’s actions the Purchased Assets or omissions occurring after the Closing DateBusiness before the Closing, except the Assumed Liabilities.

Excluded Liabilities. Purchaser shall not assume and shall not assume, be responsible obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities whatsoever of, or Action against, Sellers or relating to the Acquired Assets or the Acquired Business, of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, currently existing or hereafter arising, matured or unmatured, direct or indirect, and however arising, whether existing on the following Closing Date or arising thereafter, other than the Assumed Liabilities or obligations of Seller (collectively, all such Liabilities that are not Assumed Liabilities being referred to collectively herein as the “Excluded Liabilities”): ). For the avoidance of doubt, Excluded Liabilities shall include any and all Liabilities and obligations for (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to the Business, the Acquired Assets, or arising out of the Focus Factor Business accruing Assumed Liabilities for any taxable period (or portion thereof) ending on or prior to the Closing Date (includingas determined and paid in accordance with the principles set forth in Section 9.4), without limitation(ii) any Taxes of any Seller for any taxable period, accrued sales taxes); (iii) gift cards, rewards points or loyalty rewards issued by any Seller, (iv) liabilities for Taxes of the any Seller’s retail store leases, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes amounts due to employees, independent contractors, consultants or Advisors of any nature; Sellers (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to such amounts owed under any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring Assigned Contract after the Closing Date.Closing).‌

Excluded Liabilities. Without limiting the generality of Section 2.1, Purchaser is not assuming and, under no circumstances shall not assume and shall not be responsible it have any liability for: (i) any Plan or any obligation, responsibility, or liability under any Plan including, without limitation, any obligation or liability for notices and/or continued coverage under COBRA with respect to payany Person entitled to such coverage under a Plan for any “qualifying event”, perform as defined under COBRA, occurring prior to, as a result of, or discharge in connection with the Closing; (ii) any salary, bonus, accrued vacation, payroll, severance, workers’ compensation, health care or other benefits obligation, or other reimbursements owed by either Seller or KVP to any of its respective employees, sales agents, independent sales representatives or other Persons with respect to periods on or prior to the following Liabilities Closing Date; (iii) except to the extent that such Taxes have been taken into account in determining OWC, any obligation or liability for Taxes of either Seller or KVP with respect to the Business or the Acquired Assets for any Pre-Closing Tax Periods; (iv) any obligation or liability of either Seller or of KVP for any Taxes that are unrelated to the Acquired Assets or the Business; (v) any obligation or liability of either Seller with respect to violations of any Environmental Laws; (vi) any liability or obligation of either Seller for any tort claims, including, without limitation, claims for product liability, sexual harassment, or employment or other discrimination; (vii) any warranty claims or product liability claims relating to goods sold (including the Products) or services rendered by either Seller prior to the Closing Date; (viii) any liability or obligation of either Seller under the WARN Act or other applicable plant closure law, or liability or obligation arising out of or resulting from the employment or termination of employment by either Seller or KVP of any employees; (ix) any intercompany payables owed by either Seller to any of its respective Affiliates; (x) any notes payable of either Seller in favor of any stockholders, employees or other Affiliates of either Seller or KVP; (xi) all liabilities and obligations of either Seller or KVP under any employment agreement between either Seller or KVP and any Employee; and (xii) all other outstanding Indebtedness or Liabilities of either Seller or KVP, and further including those Liabilities set forth on Schedule 2.2 hereto (collectively, the “Excluded Liabilities”): (i) Liabilities relating to ), each of which shall be retained and paid, performed and discharged when due by Sellers or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending KVP, as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser Subject to Sections 1.4(b), neither the Purchasers nor any Designated Adobe Affiliate shall not assume and shall not be responsible to payor have any responsibility for paying, perform discharging or discharge otherwise performing, any Liability of any of the following Liabilities Seller-Related Parties (whether or obligations not related to the Business). Without limiting the generality of Seller (collectivelythe foregoing, neither the “Excluded Liabilities”): Purchasers nor any Designated Adobe Affiliate shall assume or have any responsibility for paying, discharging or otherwise performing any: (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing DateTax Liability; (ii) Liability for accrued wages, salaries, workers’ compensation, medical or disability benefits, vacation, sick or comprehensive leave benefits of or relating to the employment or termination of any liability of the Seller Service Providers; (iii) Liability under any Contract with (or other Liability to) any Seller Service Provider; (iv) retirement, pension or profit sharing Liability, Liability under any Seller Service Plan, severance Liability, payment in lieu of notice Liability or Liability arising out of any Action pending as Legal Requirement owing to any Seller Service Provider in connection with such Seller Service Provider’s employment or engagement by or Contract with, or the termination of the Closing Date; (iii) Liabilities for Taxes relating to such Seller Service Provider’s employment or arising out of the Focus Factor Business accruing prior to the Closing Date (includingengagement by or Contract with, without limitation, accrued sales taxes); (iv) liabilities for Taxes any of the Seller-Related Parties, whether as the case may be, or not relating to any penalties, fines or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller other expenses resulting from payments made pursuant to this Agreementany compliance issue with any compensation or benefits plan, severance obligation or Legal Requirement; (v) any deferred Taxes indebtedness of any natureof the Seller-Related Parties; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity Liability arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) the breach of any Government entity Contract by any of the Seller-Related Parties or from any violation of any Legal Requirement by any of the Seller-Related Parties; (i.e.vii) Liability arising out of or relating to any claim against any of the Seller-Related Parties under any warranty issued by any Seller-Related Party as of the Closing Date on software, products or services included in the liability Transferred Business Assets; (viii) Liability arising under or relating to any Contract that is imposed not an Assumed Business Contract, including any licenses for Open Source Code, leases, customer contracts, teaming agreements, including any Liability arising out of or relating to any claim by any other Person relating to any such Contract; (ix) Liability to any shareholder of, member of or any other Person holding options or other interests in, any of the Government entity)Seller-Related Parties; (x) Liability arising out of or relating to the consummation of any liability of Seller under this Agreement the Contemplated Transactions; (xi) Liability arising out of or relating to the events, facts, circumstances and other matters disclosed in Part 2.4(j) of the Disclosure Schedule (including in any letter or other document referred to therein); or (xii) other Liability of any of the Seller-Related Parties. Notwithstanding any provision of TUPE or any other document executed Service Transfer Regulation or Legal Requirement or any Liability that the Purchasers or any of their Affiliates may have to any Governmental Body or other Person thereunder, the Purchasers and their Affiliates shall have no Liability to any of the Sellers or the other Seller-Related Parties (under this Agreement, under any other Transactional Agreement, or otherwise) to assume or have any responsibility for paying, discharging or otherwise performing any Liabilities imposed on any of the Purchasers or their Affiliates by operation of Legal Requirements in connection with any of the transactions contemplated by this Agreement; Contemplated Transactions, and (xi) none of the Sellers or other Seller-Related Parties shall, or shall have any liability right to, bring any claim or Legal Proceeding for breach of Seller based Contract or otherwise against any of the Purchasers or their Affiliates as a result of any failure on Seller’s actions the part of any of the Purchasers or omissions occurring after the Closing Datetheir Affiliates to assume, pay, discharge or otherwise perform any of such Liabilities.

Excluded Liabilities. Purchaser shall Except for the Assumed Liabilities specifically set forth in Section 2.7 above, Buyer is not assume assuming, and shall not be responsible the Assumed Liabilities expressly exclude, any debt, liability, duty or obligation, whether known or unknown, fixed or contingent, of Seller including, without limitation, any liabilities or obligations related to pay, perform the Products which are outstanding or discharge any unpaid as of the following date hereof or connected in any way with any retirement, medical, life, disability or other Employee Plan of Seller or any Benefits Liabilities or obligations of Seller (collectively, the “"Excluded Liabilities”): "); it being expressly understood that the foregoing does not preclude Buyer from assuming responsibility for Employee Plan Liabilities or other Benefits Liabilities pursuant to separate written agreements between Buyer and Seller. Without limiting the foregoing, all liabilities, including any liabilities for Taxes, arising from or related to: (i) Liabilities relating to Seller's operations, whenever arising or arising out incurred, or Seller's ownership of the ownership or leasing of the Purchased Property prior to Products and Acquired Assets through the Closing Date; (ii) any liability arising out Seller's termination of any Action pending as of the Closing DateContracts which are not Transferred Contracts; (iii) Liabilities for Taxes relating to any of Seller's employees hired by Buyer that accrues or arising out arises as of the Focus Factor Business accruing or prior to the Closing Date (includingDate, without limitationor any of Seller's other agents, accrued sales taxes); (iv) liabilities for Taxes of the Sellerconsultants, independent contractors, employees or former employees, whenever arising, in each case including workers' compensation, severance, salary, bonuses or under any Employee Plan, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do such employees shall accept employment with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed Buyer in connection with the transactions contemplated by this Agreementhereby; (iv) the Products and (xi) any liability of Seller based on Seller’s actions or omissions occurring after arising prior to the Closing Date; or (v) any implied or explicit warranty obligations of Seller with respect to the Products entered into prior to the Closing Date, shall be Excluded Liabilities and shall remain the responsibility of Seller, except as otherwise specifically included within the Assumed Liabilities.

Excluded Liabilities. Purchaser shall not assume and shall not be responsible to payExcept for the Assumed Liabilities, perform or discharge neither Buyer nor any of the following Liabilities its Affiliates shall assume or obligations otherwise be liable in respect of, or be deemed to have assumed or otherwise be liable in respect of, any debt, claim, obligation, or other liability of Seller any Seller, or any of their respective Affiliates (collectively, the “Excluded Liabilities”): ), regardless or whether such debt, claim, obligation, or other liability is matured or unmatured, contingent or fixed, known or unknown. Excluded Liabilities shall include, without limitation, (i) Liabilities relating any long-term debt or notes payable of any Seller and any debt, claim, obligation or liability of any Seller to or arising out any of the ownership or leasing of the Purchased Property prior to the Closing Dateits Affiliates; (ii) any liability arising out for Taxes of any Action pending as of Seller or the Business or related to the Assets for any period prior to the Closing Date, any Tax liability of any Seller for any period after the Closing Date (in each case, subject to the proration provisions set forth in Section 2.5 below) and any Tax liability arising from the sale of the Business and Assets to Buyer contemplated herein or any liquidation and dissolution of any Seller; (iii) Liabilities for Taxes any obligation, commitment or liability of or claim against any Seller which constitutes or arises from a breach by such Seller of any representation, warranty or covenant herein; (iv) any obligation, commitment, liability of any Seller (other than Assumed Liabilities) or claim which may arise from such Seller’s operation of the Business and Assets prior to Closing; (v) any obligation, commitment or liability of or claim which may arise from events or conditions relating to or arising out of affecting the Focus Factor Assets or the Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (ivother than Assumed Liabilities) liabilities for Taxes or resulting from any Seller’s consummation of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable transactions contemplated by the Seller resulting from payments made pursuant to this Agreement; Agreement (v) any deferred Taxes of any natureother than Assumed Liabilities); (vi) one-half any obligation, commitment or liability of or claim against any Seller which may arise from the Transfer Taxesrendering of investment banking, if applicablebrokerage fees, professional, legal, accounting, appraisal, engineering or other similar services to such Seller in connection with the transactions herein; (vii) any obligation, commitment or liability of any Seller having to do with a business other than the Focus Factor Businessunder any of such Seller’s Plans; (viii) any liability with respect to and all claims of employees of any Employee or former employee of Seller, or any consultant retained by Seller; (ix) obligations or liabilities under any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any lawContract not included in the Assumed Contracts, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) obligations or liabilities under any liability Assumed Contract for which a Consent, if required, has not been obtained as of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and Closing, (xi) any liability obligations or liabilities arising under the Assumed Contracts or otherwise relating to the time period prior to the Closing Date or arising out of events occurring prior to the Closing Date (including liabilities for breach by any Seller based on Seller’s actions or omissions prior to Closing), (xii) all Accounts Payable, other than the Assumed Accounts Payable, (a) any and all expenses and liabilities relating to any litigation and similar claims against any Seller arising out of events occurring after prior to the Closing Date, including without limitation that certain lawsuit against Vertical Lend, Inc. (as more fully described above); (xiii) any obligations or liabilities of any Seller arising from its arrangements, understandings or agreements with Information Technology Services, Inc. d/b/a Infotech and (xiv) any forfeiture, claim or pending litigation or proceeding relating to the Business, prior to the Closing Date, shall remain and be the obligation and liability the Sellers. The Sellers agree, jointly and severally, that they shall pay promptly when due any and all Excluded Liabilities not discharged by them at or prior to Closing. Buyer is not the successor employer of any Seller’s employees for any purpose and is not required to employ any of such employees.

Excluded Liabilities. Notwithstanding the provisions of Section 1.6 or any other provisions in this Agreement to the contrary, Purchaser shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations liabilities of Seller of any kind or nature whatsoever other than the Assumed Liabilities (collectively, the “Excluded Liabilities”): ), and the Seller shall pay and remain responsible for all such Excluded Liabilities. Without limiting the generality of this Section 1.7, the Excluded Liabilities shall include, but not be limited to, the following: (ia) Liabilities relating any liability of Seller arising from, or in connection with, the conduct of the Business prior to the Closing or the ownership of the Purchased Assets by Seller prior to the Closing, including, without limitation, any such liabilities arising by reason of any violation or claimed violation by Seller, by acts or events or omissions arising or occurring prior to the Closing, of any federal, state or local law, rule, regulation, ordinance or any requirement of any governmental body; 4 (b) to the extent not covered by any applicable manufacturer’s warranty, any warranty liability of Seller or similar obligation of Seller arising from products sold or services rendered prior to the Closing; (c) any liability of Seller related to or arising out of the ownership or leasing of Excluded Assets; (d) any liability for (i) any taxes required by law to be paid by Seller relating to the Business, the Purchased Property prior to Assets or the Assumed Liabilities for any taxable period ending on or before the Closing Date; (ii) any liability arising taxes that arise out of any Action pending as the consummation of the Closing Datetransactions contemplated hereby or that are the responsibility of Seller under Section 7.4; or (iii) Liabilities other taxes of Seller of any kind or description (including any liability for Taxes relating to taxes of Seller that becomes a liability of Purchaser under the principles of transferee or arising out successor liability or otherwise by operation of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxescontract or law); (ive) liabilities any liability of Seller for Taxes any present or former employees, agents or independent contractors of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from liabilities associated with any claims for wages, bonuses, commissions, accrued vacation or other benefits, severance, termination or other payments made pursuant accrued or incurred prior to this AgreementClosing; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (viif) any liability under any Employee Benefit Plan (later defined), including without limitation, any employee benefit plan of Seller having to do with a business or sponsored by Seller, any 401K plan or any other than “employee pension benefit plan” as defined in Section 3(2) of the Focus Factor BusinessEmployee Retirement Income Security Act of 1974 (“ERISA”); (viiig) any liability or obligation with respect to indebtedness of Seller or the Business owing to any Employee bank or former employee other financial institution; (h) any trade payables and accounts payable of Seller, or any consultant retained by Seller; (ixi) any liability to any Governmental entity arising out of or resulting relating to any employee grievance against Seller arising from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment relating to events or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity)omissions prior to Closing; (xj) any liability or obligation under or relating to that certain founder compensation agreement between Seller and Xxxxxx Xxxx dated as of Seller under this Agreement or any other document executed in connection with August 15, 2009 (the transactions contemplated by this “Founder Compensation Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date”). 1.8.

Excluded Liabilities. Purchaser shall Notwithstanding anything to the contrary contained in this Agreement (except for the sentence immediately following) or in any Transaction Document, the New LLC will not assume and shall not be responsible assume, agree to pay, perform and discharge or discharge in any of the following Liabilities way be responsible for any debts, liabilities or obligations of Seller (collectivelythe Business, the “Excluded Liabilities”): (i) Liabilities Seller, any Member or any of their respective Affiliates of any kind or nature whatsoever, arising out of, relating to to, resulting from, or caused by any transaction, status, event, condition, occurrence or situation relating to, arising out of or in connection with the ownership Business, the Assets, Seller or leasing of the Purchased Property any Member existing, arising or occurring on or prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable liabilities or obligations relating to or arising from the Excluded Assets (the “Excluded Liabilities”). Notwithstanding the foregoing, Seller will contribute into New LLC, and New LLC will assume and thereafter pay and fully satisfy when due, all liabilities and obligations: (a) which arose prior to the New LLC Asset Transfer and represent normal and current trade payables incurred by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated operation of the Business in the ordinary course of business, consistent with past custom and practice (to the extent not delinquent), including without limitation those set forth on Schedule 1.4(a) (which Schedule will be updated by this AgreementSeller as of the Closing Date) (“Accounts Payable”); (b) the other accrued liabilities of Seller which have been incurred in the ordinary course of business, consistent with past custom and practice, and which are specifically set forth on Schedule 1.4(b) (which Schedule will be updated by Seller as of the Closing Date) (“Accrued Liabilities”); and (xic) arising after the New LLC Asset Transfer under any Assumed Contract (except for any liability or obligation arising from any breach or failure to perform under any of Seller based on Seller’s actions or omissions occurring after the foregoing prior to the Closing Date) (all such liabilities and obligations to be so contributed into, and assumed by, the New LLC being collectively referred to herein as the “New LLC Assumed Liabilities”).

Excluded Liabilities. Purchaser Notwithstanding any provision in this Agreement or any other writing to the contrary, and regardless of any disclosure to Buyer whether or not in the Disclosure Letter, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the following Business or the Seller other than the Assumed Liabilities or obligations of Seller expressly assumed under Section 2.3 (collectivelythe Liabilities not assumed by Buyer hereunder, the “Excluded Liabilities”): ). For the avoidance of doubt, Excluded Liabilities shall include (a) any Liabilities of the Business or the Seller or any of its Affiliates relating to, arising from, or in respect of the conduct of the Business during the period prior to the Closing except to the extent expressly assumed pursuant to Section 2.3, including (i) any Liabilities of the Business or the Seller or any of its Affiliates under, relating to or otherwise in any way in respect of Contracts except to the extent constituting Assumed Liabilities pursuant to Section 2.3(a), (ii) any Liabilities of the Business or the Seller or any of its Affiliates in connection with any note, bond and other Indebtedness of the Business or the Seller to the extent arising from the conduct of the Business prior to the Closing, (iii) all Taxes attributable to the Seller or its Affiliates and all other Taxes arising from the conduct of the Business prior to the Closing, (iv) any Liabilities associated with any breach of, or noncompliance with, the Seller Benefit Plans occurring or arising prior to Closing and (v) all Liabilities of the Seller relating to or arising out from the sales process, negotiation, execution and delivery of this Agreement, the performance of Seller’s obligations hereunder and the consummation of the ownership transactions contemplated hereby, including any and all legal, accounting, consulting, investment banking, financial advisory, and other out-of-pocket fees and expenses; (b) any Intra-Company Liabilities; (c) any Liabilities (x) in respect of Transferred Employees arising on or leasing of the Purchased Property prior to the Closing Date, and (y) arising on, prior to or following the Closing Date in respect of any other current, former or prospective employees, directors or individual independent contractors or the Seller and its Affiliates, in both cases including, Liabilities in respect of Labor Laws, Contracts, Seller Benefit Plans, Taxes, workers’ compensation, pay, benefits and otherwise, to the extent not specifically assumed by the Buyer pursuant to Section 5.6; (iid) any liability Liabilities in connection with all accounts payable and obligations to make payments thereunder to any Person to the extent relating to the Purchased Assets or the Business; (e) any Loss arising out from or in connection with any actions, suits, claims or proceedings pending, or threatened, against the Business or the Seller or any of any Action pending as its Affiliates relating to, arising from, or in respect of the Closing Date; (iii) Liabilities for Taxes relating to or arising out conduct of the Focus Factor Business accruing during the period prior to the Closing Date (including, without limitation, accrued sales taxes)Closing; (ivf) liabilities for all Taxes of the Seller, whether Seller or not relating to or arising out of the Focus Factor business and whether or not incurred prior its Affiliates unrelated to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this AgreementPurchased Assets; and (vg) any deferred Taxes of any nature; other Person imposed on the Seller or its Affiliates (vi1) oneby reason of being a member of an affiliated, consolidated, combined or unitary group, including pursuant to Section 1.1502-half 6 of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than income tax regulations promulgated under the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, Code or any consultant retained similar provision of state, local or foreign Law or (2) as a transferee or successor, by Seller; contract (ixincluding any contracts among the Seller and its Affiliates) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Dateotherwise.

Excluded Liabilities. Purchaser Notwithstanding any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming and shall not assume any other liability or obligation of Seller of whatever nature whether presently in existence or arising hereafter. All such other liabilities and shall not be responsible obligations to paythe extent that they arose or existed prior to the Closing Date, perform including (a) all Indebtedness, (b) any Action against or discharge affecting Seller, the Core Business or any Purchased Asset or Contract which Action arose out of any action or omission or alleged act or omission of Seller prior to the Closing Date, (c) any liability resulting from any tort or any violation of any Law (including violations of warranties, trademark infringement, for “spamming”, privacy violations or consumer complaints) or the breach of any Contract; (d) any liability relating to any compensation, executive compensation, phantom equity or employee benefit plan, policy, practice or agreement including those set forth on Schedule 3.26, (e) any Taxes of Seller and/or its Subsidiaries or Affiliates or for which Seller or any of its Subsidiaries or Affiliates is or may be liable, without regard to when such Tax is due or payable, (f) any liability under the following Liabilities Contracts not assumed under this Agreement, (g) any liability or obligation relating to any Excluded Asset, (h) warranty, service, maintenance or indemnification obligations of Seller (collectivelyin existence at Closing, the “Excluded Liabilities”): (i) Liabilities any liability relating to or arising out of any Environmental Claims to the ownership extent same arises out of acts or leasing of the Purchased Property omissions occurring on or prior to the Closing Date; , including the matters disclosed on Schedule 3.30(a), and (iij) any Indebtedness, liability arising out or obligation of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability kind of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee of its Affiliates or any former employee employee, agent, consultant or representative of Seller, or any consultant shall in each and every case be retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability and remain obligations and liabilities of Seller under this Agreement or any other document executed in connection with (all such liabilities and obligations not being assumed being herein referred to as the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date“Excluded Liabilities”).

Excluded Liabilities. Purchaser shall Except for the Assumed Liabilities, the Buyer is not assume and shall not be responsible to pay, perform or discharge assuming any Liability of the following Liabilities or obligations Seller. Without limiting the generality of Seller (collectivelythe foregoing, the “Excluded Liabilities”): Buyer is not assuming, and the Seller shall be solely responsible for: (i) Liabilities to any employee, independent contractor, consultant, agent or representative of the Seller relating to or arising out of the ownership or leasing of the Purchased Property services performed prior to the Closing Date, including, without limitation, Liabilities under any employment, consulting, severance pay, retirement, fringe benefit plan or other arrangement or agreement of any kind; (ii) any liability Liabilities related to the Transferred Lease occurring or arising out of any Action pending as of prior to the Closing Date; (iii) Liabilities for Taxes relating related to the Excluded Assets; (iv) Liabilities related to Transferred Contracts completed prior to or arising out work performed prior to the Closing Date; (v) Liabilities for taxes or indebtedness of the Focus Factor Business accruing Seller (but not including any taxes related to the Buyer’s post-Closing ownership, control, use, or operation of the Purchased Assets, including but not limited to any post-Closing reassessment of or other increases in taxes affecting the Purchased Assets as a result of the consummation of the transactions contemplated by this Agreement); (vi) accounts payable, (vii) Liabilities of the Seller to Trifusion, LP or its partners pursuant to that certain Asset Purchase Agreement dated February 21, 2011 (the “Trifusion Agreement”), (viii) Liabilities related to the Transferred Customer Owned Inventory occurring or arising prior to the Closing Date (including“Pre-Closing Customer Inventory Liabilities”), without limitation, accrued sales taxessubject to the terms set forth in Section 11(a); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability other Liabilities related to any Governmental entity arising out the operation of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award the Business prior to Closing (an “Order”clauses (i) of any Government entity through (i.e.ix), the liability is imposed by the Government entity“Excluded Liabilities”); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser Except as expressly set forth in Section 1.1(c), the Buyer shall not assume and shall not or be responsible to payat any time for any liability, perform obligation, debt or discharge any commitment of the following Liabilities Company, whether absolute or obligations contingent, accrued or unaccrued, asserted or unasserted, or otherwise, including but not limited to any liabilities, obligations, debts or commitments of Seller the Company incident to, arising out of or incurred with respect to, this Agreement and the transactions contemplated hereby (collectivelyincluding any and all sales, the “Excluded Liabilities”): (i) Liabilities relating to income or other taxes arising out of the ownership or leasing transactions contemplated hereby). Without limiting the generality of the Purchased Property prior foregoing, the Company and the Shareholders expressly acknowledge and agree that the Company shall retain, and that Buyer shall not assume or otherwise be obligated to pay, perform, defend or discharge, (i) any liability of the Closing Date; Company and/or the Shareholders for Taxes, whether measured by income or otherwise, (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to Company in connection with any Plan or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether Benefit Program or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing dateAgreement, including, without limitation, any Taxes payable liability of the Company under ERISA, (iii) any liability of the Company under any federal, state or local law, rule, regulation, ordinance, program, Permit, or other Legal Requirement applicable to the Company's business and/or the facilities Used by the Seller resulting from payments made pursuant Company (whether or not owned by the Company), (iv) any product liability pertaining to this Agreement; products sold or manufactured by the Company prior to the Closing Date, (v) any deferred Taxes liability or obligation of the Company relating to any nature; default taking place before the Closing Date under any of the Assumed Obligations to the extent such default created or increased the liability or obligation, (vi) one-half any obligation of the Transfer TaxesCompany to the Shareholders (except for lease payments and/or reimbursable property tax payments related to the Company's Rio Grande facility that are included in Assumed Obligations pursuant to Section 1.1(c)(i)) or any Affiliate of the Company or the Shareholders, if applicable; or (vii) any liability obligation of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect Company to any Employee Person claiming to have a right to acquire any capital stock or former employee other securities of Seller, or any consultant retained by Seller; (ix) any liability the Company. The Company further agrees to any Governmental entity arising out satisfy and discharge as the same shall become due all obligations and liabilities of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed Company not specifically assumed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing DateBuyer hereunder.

Excluded Liabilities. Notwithstanding anything to the contrary set forth herein, the Sellers will remain liable with respect to, and Purchaser shall will not assume and shall will be deemed not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller (collectivelyhave assumed, the Excluded Liabilities. “Excluded Liabilities”): ” means any and all Liabilities of the Sellers arising out of, relating to or otherwise in respect of the operation of the Purchased Assets and the Business before the Closing Date, other than such Liabilities that specifically are included as Assumed Liabilities, including (i) all Liabilities relating to or arising out of the ownership or leasing of Sellers arising from the Purchased Property prior to the Closing Date; Transactions, (ii) any liability arising out of any Action pending as of the Closing Date; all Liabilities for (A) Income Taxes and (B) Non-Income Taxes that are allocated to Seller pursuant to Section 10.4(a), (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (includingany obligations under any employee benefit plans, without limitationincluding retiree healthcare, accrued sales taxes); and (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability Liability with respect to any Employee the Purchased Assets or former employee of Sellerthe Business, or any consultant retained by Seller; (ix) any liability to any Governmental entity the extent arising out of or resulting from related to events occurring prior to Closing, including any such Liability or obligation (A) pursuant to any express or implied representation, warranty, agreement, coal specification undertaking or guarantee made by any Seller or any Affiliate of such Seller’s compliance , or noncompliance with alleged to have been made by Seller or any lawAffiliate of such Seller, regulation, order, injunction, judgment, decree, ruling, assessment (B) imposed or award (an “Order”) of any Government entity (i.e., the liability is asserted to be imposed by operation of applicable Law, (C) arising pursuant to the Government entity)WARN Act; or (xD) pursuant to any liability doctrine of Seller under this Agreement product liability, in each case to the extent arising out of or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions related to events occurring after the Closing Dateprior to Closing.

Excluded Liabilities. Purchaser Except as expressly set forth in Section 2.3, CTB shall not assume and shall not be responsible to paynot, perform or discharge any by virtue of its purchase of the following Purchxxxx Xxxxxx xx xtherwise in connection with the Transactions, assume or become responsible for any Liabilities or obligations of Seller (collectively, the “"Excluded Liabilities”): ") of any Selling Entity of any nature whatsoever arising on or before the Closing Date, including, but not limited to (ia) Liabilities relating to or arising out of any Selling Entity, the ownership Purchased Assets, the Business (including any event, condition, occurrence, action, inaction or leasing transaction relating to any of the Purchased Property foregoing) or the actions of any Selling Entity's officers, employees, representatives or agents prior to or at the Closing DateClosing, (b) Liabilities for any Taxes (other than what is provided in Section 2.3(b)), (c) Liabilities relating to any claims for health care or other welfare benefits, (d) Liabilities relating to any violation of any Law, (e) tort Liabilities, (f) Liabilities from claims arising under any Contract or Permit not assumed by CTB pursuant hereto or included in any arrangement set forth in Section 2.5; (iig) Liabilities for claims arising under any liability arising out Contract or Permit to the extent such claim is based on events, conditions, acts or omissions of any Action pending Person which occurred prior to or at the Closing; (h) contingent Liabilities unknown to the Selling Entities at the Closing; and (i) Liabilities for any accounts payable existing as of the Closing Date; (iii) Liabilities Date or indebtedness for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Datemoney borrowed.

Excluded Liabilities. Purchaser shall Notwithstanding anything to the contrary contained in this Agreement and regardless of whether such liability is disclosed herein or on any schedule hereto, other than the Assumed Liabilities, Buyer will not assume and shall not or be responsible to pay, perform liable for any obligation or discharge any liability of the following Liabilities Company or obligations Parent, whether arising prior to, at or after the Effective Time, all of Seller which are hereby retained by the Company and will be paid, performed or discharged solely by the Company and Parent (collectively, the “Excluded Liabilities”): ). The Excluded Liabilities include, without limitation, any liabilities, damages, costs (including attorneys’ fees and consultants’ fees), fines, penalties or other obligations arising in connection with the ownership or operation of the Business, the Purchased Assets and/or any business of the Company or Parent on or prior to the Effective Time, including (i) Liabilities relating to the Accounts Payable, (ii) liabilities of the Company under the Transaction Documents, (iii) liabilities for or arising from any claims (whenever made) or proceedings in respect of the operation of the Business or any liability or obligation arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to any products manufactured, packaged, distributed or arising out of sold by the Focus Factor Business accruing prior to the Closing Date Company, and Liens imposed by Law (including, without limitation, accrued sales taxesthe Perishable Agricultural Commodities Act); (iv) liabilities for Taxes any Indebtedness or any other payment owed by the Company or secured by any of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this AgreementPurchased Assets; (v) liabilities for any deferred Taxes, including any assessments, claims or liabilities (including interest and/or penalties) for Taxes, in respect of, imposed upon or assessed against (1) the Business or the Purchased Assets, or the sales, income, property or business of the Company, for taxable periods ending on or before the Effective Time (and with respect to a Straddle Period, the portion of such Straddle Period ending on and including the Closing Date), and (2) the Company for any taxable period; provided, however, that liabilities for Transfer Taxes of any nature; and Taxes for a Straddle Period shall be apportioned as provided in Section 6.1(a), (vi) one-half liabilities for any claim, damage, fine or penalty (including interest) arising from events occurring on or prior to the Effective Time for personal injury, property damage, violation of immigration laws or employee welfare and safety laws, employment discrimination or infringement or misappropriation of any Intellectual Property by the Transfer TaxesCompany, if applicable; (vii) any liability or obligation under any Assumed Contract which arises after the Effective Time but which arises out of Seller having or relates to do with a business other than any act or omission which occurred on or prior to the Focus Factor Business; Effective Time, (viii) any liability with respect to or obligation under any Employee or former employee of SellerContract that is not an Assumed Contract, or any consultant retained by Seller; (ix) any liability or obligation under the Plans or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee stock option or profit sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for the Company’s employees or former employees or both, (x) any liability or obligation under any employment, severance, retention or termination agreement with any employee of the Company, (xi) any liability or obligation arising out of or relating to any Governmental entity employee grievance with respect to the employees of the Company, whether or not the affected employees are hired by Buyer, (xii) any liability or obligation to indemnify, reimburse or advance amounts to any officer, director, employee or agent of the Company, (xiii) any liability associated with any Excluded Assets, (xiii) any liability or obligation arising out of or resulting from Sellerthe Company’s compliance or noncompliance non-compliance with any lawLaw, regulation(xiv) all liabilities, orderdamages, injunctioncosts (including attorneys’ fees and consultants’ fees), judgmentfines, decreepenalties or other obligations pursuant to any Environmental Law or relating to Hazardous Materials, rulingand arising out of or relating to acts or omissions, assessment or award any condition existing, on or before the Closing Date, (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (xxv) any liability arising from the termination of Seller under this Agreement any of the Company’s employees prior to or on the Closing Date, including liability arising from the failure to give notice to employees of such termination as required by the Worker Adjustment Retraining and Notification Act (the “WARN Act”) (or any other document executed in connection with the transactions contemplated by this Agreement; similar state law), and (xixvi) any liability or obligation of Seller the Company based on Sellerupon the Company’s actions acts or omissions occurring after the Closing DateEffective Time.

Excluded Liabilities. Except for the Assumed Liabilities, Purchaser shall is not assume assuming and shall is not be responsible to payfor, perform and is not otherwise bearing the economic burden of, any Encumbrances (other than Permitted Encumbrances) against or discharge any of the following Liabilities or obligations of Seller (collectivelyall such Encumbrances and Liabilities, the “Excluded Liabilities”): ), including (iwithout limitation) any Liability specifically identified in Section 2.6.2. Seller shall be responsible for, and agrees to discharge and perform when due, all of the Excluded Liabilities. The Excluded Liabilities shall include (without limitation), and the Assumed Liabilities shall not include, the following: all Liabilities under, relating to or arising out of the ownership or leasing in connection with, any Indebtedness of the Purchased Property prior to the Closing DateSeller; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) all Liabilities for Taxes under, relating to or arising out of or in connection with, any Specified Excluded Contracts and any other Contracts that are not Assumed Contracts; all Liabilities for (i) Transfer Taxes, (ii) Taxes that relate to the Focus Factor Purchased Assets or the Assumed Liabilities for taxable periods (or portions thereof) ending on or before the Closing Date, (iiiii) any payroll and similar Taxes, whether owed by the employee or employer, with respect to any current or past employees of Seller or the Business, or (iii(iv) any other Taxes of Seller. any and all Liabilities or other obligations of Seller to any current or past employee, independent contractor or intern of Seller or the Business accruing arising on or prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to first raised prior to, on or arising out of the Focus Factor business and whether or not incurred prior to after, the Closing dateDate), including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (vi) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee salary, wages, benefits, expense reimbursements, severance or former employee of Sellerother separation payments, any sales or any consultant retained by Sellerother commissions or other cash or non-cash compensation; and (ixii) any liability to obligations required by the terms of any Governmental entity arising out of benefit plan or resulting from Seller’s compliance or noncompliance collective bargaining agreement with any lawlabor organization, regulationand/or relating to all Actions, orderclaims, injunctiongrievances, judgmentcomplaints, decree, ruling, assessment charges or award (an “Order”) causes of any Government entity (i.e., action arising before the liability is imposed by the Government entity)Closing Date; (x) any liability all Liabilities of Seller under this Agreement or any and all other document executed in connection with the transactions contemplated by this AgreementTransaction Documents Seller is a party to; and to the extent not covered by the preceding clause (xia) any liability of Seller based on Seller’s actions through (e), all Liabilities arising from or omissions occurring after related to the Closing DateExcluded Assets.

Excluded Liabilities. Purchaser Except as set forth in Section 1(c), DEGC shall not assume and shall not be responsible or otherwise become obligated pursuant to paythis Agreement to pay when due, perform or discharge any of the following Liabilities debts, claims, liabilities, obligations, damages or obligations expenses of Seller (collectivelywhether known or unknown, the “Excluded Liabilities”): (i) Liabilities relating to contingent or absolute, or arising out of the ownership before, on or leasing of the Purchased Property prior to after the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by liability for (i) Government Payments accruing for periods preceding the Seller Closing Date, (ii) defaults under contracts resulting from payments made pursuant events or occurrences arising prior to this Agreement; the Closing Date, (iii) Indebtedness, (iv) any litigation or claims by a Governmental Entity or any other person or entity, including without limitation any litigation disclosed on SCHEDULE 4.17 and SCHEDULE 4.24, (v) any deferred Taxes obligations under contracts or agreements of any nature; Seller not consisting of Purchase Orders or Purchased Contracts (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having Seller's expenses arising from or relating to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement, including without limitation attorneys' fees, accounting fees and investment banking fees, (vii) obligations with respect to employees, other than Assumed Vacation Pay, or with respect to the Benefit Plans, (viii) accounts payable and accrued liabilities (other than Assumed Liabilities), and (ix) any severance payments owed to any employees of Seller or Parent as a result of any severance plan or agreement between such employees and Seller or Parent (collectively, the "EXCLUDED LIABILITIES"). "INDEBTEDNESS" means, with respect to any Person, (a) all indebtedness for borrowed money; (b) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (c) any indebtedness or other amounts owing to Seller or any of its Affiliates; (d) guaranties, securing indebtedness for borrowed money; and (xie) all indebtedness secured by any liability lien, security interest, charge or encumbrance of Seller based any kind (a "LIEN") on Seller’s actions any property or omissions occurring after asset owned or held by that Person regardless of whether the Closing Dateindebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person. "AFFILIATE" shall mean any other Person directly or indirectly controlling or controlled by or under common control with such specified Person. For purposes of this definition, "control" means the power to direct the management and policies of another Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. A "PERSON" shall mean an individual, corporation, partnership, joint venture, trust or unincorporated organization or association or other form of business enterprise or a Governmental Entity.

Excluded Liabilities. Except for the Assumed Liabilities, Purchaser does not assume or agree to pay any liability or obligation of Seller, direct or indirect, known or unknown, absolute or contingent, contractual or otherwise, including, without limitation, liabilities, obligations or responsibilities under Environmental Laws (all such liabilities not being assumed by Purchaser being referred to herein as the "Excluded Liabilities"). Seller shall remain responsible for the Excluded Liabilities and shall indemnify Purchaser with respect thereto to the extent provided in Section 10.2 hereof. Without in any manner limiting the foregoing, it shall be expressly understood that, except as otherwise expressly provided in this Agreement, Purchaser shall not at the Closing assume (a) any obligation under any employee benefit or welfare plan sponsored in whole or in part by the Seller and shall relating to the Newspapers (including but not be responsible limited to payworker's compensation and other health and welfare plans), perform or discharge any other obligation pertaining in any manner to any employees or former employees of the following Liabilities Newspapers or obligations their dependents, (b) any federal, state or local tax liability of the Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to the Newspapers or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; Assets, (iic) any liability arising out of any Action pending as the operations of the Newspapers prior to the Closing Date; or arising prior to the Closing with respect to the Purchased Assets, (iiid) Liabilities for Taxes any long term debt or capital lease obligations, or any current portions related thereto, (e) any obligation under any insurance policy relating to the Newspapers, their employees or arising out former employees, or their dependents, or the Purchased Assets, (f) any liability payable to any Affiliate of Seller, including but not limited to the Focus Factor Business accruing "head office account", or any liability relating to accrued payroll, including commissions, carrier tips, benefit plan contributions and accrued payroll taxes, with respect to work performed prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes or from terminations of the Seller, whether employment on or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing dateDate, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (viig) any liability for the remedial work described in the August 6, 1996 estimate from Inspection & Valuation International relating to the San Gabrxxx Xxxley Tribune building which is appended as part of Seller having Section 2.2 of the Disclosure Schedule and any liability to do any contractors or other persons for unpaid fees for services or materials furnished, or work performed with a business other than respect to, that facility prior to the Focus Factor Business; Closing or (viiih) any lease liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”the automobiles described in Section 1.3(h) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.

Excluded Liabilities. Purchaser shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations Any Liability of Seller or its Affiliates other than the Assumed Liabilities (collectively, the “Excluded Liabilities”) shall be retained by Seller and its applicable Affiliates, and the Buyer shall not hereunder assume or become liable for any Excluded Liability, including (to the extent related to the ownership or operation of any of the Purchased Assets): (ia) Liabilities relating to any Liability of the Business or the Seller or any other Person arising out of or relating to the ownership or leasing operation of the Purchased Property Assets or the Business prior to the Closing; (b) any Liability for accounts payable, accrued expenses and similar items to the extent that they arise or are incurred prior to the Closing Date; (c) any Liability relating to any Action that (i) on the Closing Date, is pending against Seller or its Affiliates, in connection with the Purchased Assets, the Business or any other business of Seller or its Affiliates or (ii) any liability arises after the Closing Date, to the extent arising out from, or relating to, acts or omissions of any Action pending as of Seller and/or its Affiliates prior to the Closing Date; (d) any Liabilities arising from or relating to (i) any employee of Seller or its Affiliates, (ii) any Benefit Plan or (iii) any other employee benefit plans, programs, policies, agreements and arrangements with respect to which Seller or any of its Affiliates has, now or in the future, any obligation to make contributions or pay benefits; (e) any Liabilities for Taxes relating to or arising out (i) of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; the ownership or operation of the Business or the Purchased Assets for a Pre-Closing Period, (vii) of the Seller or any deferred of its Affiliates (including any Liability of the Seller and any of its Affiliates for the Taxes of any nature; other Person (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; Buyer or its Affiliates) under Treasury Regulation Section 1.1502-6 (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained similar provision of state, local or non-U.S. Law), as a transferee or successor, by Seller; Contract or otherwise), (ixiii) any liability to any Governmental entity arising that arise out of or resulting result from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) the consummation of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement (other than Buyer’s 50% share of any Transfer Taxes pursuant to Section 2.10(a)) or (iv) required to be withheld in connection with any payment to or for the benefit of the Seller pursuant to this Agreement, to the extent not withheld pursuant to Section 2.12 (collectively, “Excluded Taxes”); (f) any Liability arising out of, or related to, the failure to comply with FIFRA or similar state pesticide laws regarding any Transferred Product manufactured, produced, sold, distributed, or offered for sale or distribution prior to the Closing Date; and (xig) any liability Liability arising out of, or related to, any Contract of the Seller based on Seller’s actions or omissions occurring after the Closing Date.its Affiliates that is not an Assumed Contract. 2.6

Excluded Liabilities. Purchaser Except as set forth in Section 1(c), DEGC shall not assume and shall not be responsible or otherwise become obligated pursuant to paythis Agreement to pay when due, perform or discharge any of the following Liabilities debts, claims, liabilities, obligations, damages or obligations expenses of Seller (collectivelywhether known or unknown, the “Excluded Liabilities”): (i) Liabilities relating to contingent or absolute, or arising out of before, on or after the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxesClosing); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by liability for (i) Government Payments accruing for periods preceding the Seller Closing, (ii) defaults under contracts resulting from payments made pursuant events or occurrences arising prior to this Agreement; the Closing, (iii) Indebtedness, (iv) any litigation or claims by a Governmental Entity or any other person or entity, including without limitation any litigation disclosed on SCHEDULE 4.17 and SCHEDULE 4.24, (v) any deferred Taxes obligations under contracts or agreements of any nature; Seller not consisting of Purchase Orders or Purchased Contracts (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having Seller's expenses arising from or relating to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement, including without limitation attorneys' fees, accounting fees and investment banking fees, (vii) obligations with respect to employees, other than Assumed Vacation Pay, or with respect to the Benefit Plans, (viii) accounts payable and accrued liabilities (other than Assumed Liabilities), and (ix) any severance payments owed to any employees of Seller or Parent as a result of any severance plan or agreement between such employees and Seller or Parent (collectively, the "EXCLUDED LIABILITIES"). "INDEBTEDNESS" means, with respect to any Person, (a) all indebtedness for borrowed money; (b) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (c) any indebtedness or other amounts owing to Seller or any of its Affiliates; (d) guaranties, securing indebtedness for borrowed money; and (xie) all indebtedness secured by any liability lien, security interest, charge or encumbrance of Seller based any kind (a "LIEN") on Seller’s actions any property or omissions occurring after asset owned or held by that Person regardless of whether the Closing Dateindebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person. "AFFILIATE" shall mean any other Person directly or indirectly controlling or controlled by or under common control with such specified Person. For purposes of this definition, "control" means the power to direct the management and policies of another Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. A "PERSON" shall mean an individual, corporation, partnership, joint venture, trust or unincorporated organization or association or other form of business enterprise or a Governmental Entity.

Excluded Liabilities. Purchaser shall not assume Except for the payment or assumption of the -------------------- Liabilities and shall the performance of the Obligations as specifically set forth in the Assumption Agreement, Buyer will not be responsible obligated to paypay or assume or perform, perform and neither Buyer nor PA&E shall be liable for, any liabilities or discharge obligations of the Company, the Business or the Shareholders, known or unknown, contingent or absolute, accrued or otherwise (the "Excluded Liabilities"). The Excluded Liabilities include, but are not limited to, any liabilities or obligations: (a) for the ML Debt; (b) for any Excise Tax; (c) relating in any way to the ESOP, any of its present or former trustees, or any ESOP participants, including without limitation any liabilities or obligations, now existing or at any time hereafter arising, to make any contributions to the ESOP or to purchase or repurchase any stock or other interest of any ESOP participant; (d) of the Company to pay any dividends on or make any other distributions with respect to any of the following Liabilities or obligations of Seller Company Common Stock; (collectivelye) for any Tax, the “Excluded Liabilities”): as defined in Section 2.1.8; (if) Liabilities relating to or arising out any of the ownership Shareholders, or leasing any directors or officers of the Purchased Property prior to the Closing DateCompany; (iig) any liability arising out of any Action pending to Seller's employees, except wages not yet payable as of the Closing DateDate and any accrued vacation or accrued sick pay for such employees; (iiih) Liabilities for Taxes relating to or arising out any issuances of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes)securities; (ivi) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with any dissolution of the transactions contemplated by this AgreementCompany; and (xij) under any "Environmental Law," as defined in Section 2.1.13; (k) that are undisclosed liabilities, except the liabilities described in subsection (ii) of Section 1.5; (l) any liability payments for obligations that constitute or relate to a violation of Seller based law or regulation; (m) for any defaults of the Company for any payment or performance due before the Closing; (n) for any Contract required to be disclosed on Seller’s actions Schedule 2.1.10 and not so disclosed; or omissions occurring after the Closing Date(o) that is associated with any Excluded Asset.