Common use of Included Liabilities Clause in Contracts

Included Liabilities. Upon the terms, and subject to the conditions of this Agreement, Buyer and/or its designated Affiliates shall assume as of the Effective Time and shall pay, perform and discharge when due the following Liabilities, and only the following Liabilities, of Seller and its Affiliates; provided, however, that, notwithstanding clauses (a) through (m) below, Included Liabilities shall not include any such Liabilities, obligations or commitments to the extent they are retained by Seller or its Affiliates, or otherwise are the responsibility of Seller or its Affiliates pursuant to this Agreement (whether arising from Seller’s breach or inaccuracy of a representation or warranty or pursuant to Seller’s indemnification obligations or otherwise) (collectively, the “Included Liabilities”): (a) all Liabilities, obligations and commitments (other than those under Environmental Laws) arising out of the ownership and operation of the Business, from and after the Effective Time; (b) all Liabilities, obligations and commitments arising out of events or occurrences happening from and after the Effective Time under the Transferred Contracts that are Included Assets under Section 1.3(c) and those portions of the Included Shared Contracts that are Included Assets under Section 1.3(c) and that relate exclusively to the Business, but not including any Liability for any Default under any such Transferred Contract or Included Shared Contract occurring prior to the Effective Time; (c) all Liabilities, obligations and commitments relating to the return or claimed spoilage of Products manufactured prior to the Effective Time and returned or claimed spoiled more than thirty (30) days after the Closing Date (whether physically returned, or whether a credit, deduction or other accommodation is made); (d) all Liabilities, obligations and commitments in respect of any and all Products manufactured by Buyer or its Affiliates from and after the Effective Time; (e) all Liabilities, obligations and commitments for manufacturer’s coupons relating to Products (i) which coupons are issued, granted, delivered or otherwise made available prior to the Effective Time and are received by the clearinghouse for reimbursement more than one hundred twenty (120) days after the Closing Date and (ii) which coupons are issued, granted, delivered or otherwise made available from and after the Effective Time; (f) all Liabilities, obligations and commitments for trade and consumer promotions relating to the Products arising from trade promotion activities or events (i) that commence on or after the Closing Date or (ii) that commenced prior to but concluded on or after the Closing Date; provided, that the amount of Liabilities, obligations and commitments assumed by Buyer pursuant to clause (ii) in respect of any trade or consumer promotion shall be equal to the total amount of Liabilities, obligations and commitments related to such trade or consumer promotion multiplied by a fraction, the numerator of which is equal to the number of calendar days such trade or consumer promotion was available on or after the Closing Date, and the denominator of which is equal to the total number of calendar days such trade or consumer promotion was available; (g) all Liabilities, obligations and commitments for advertising for the Business for advertising airing or appearing in periods from and after the Effective Time made in the ordinary course of business consistent with past practice; (h) all Liabilities under any Environmental Law to the extent arising out of the ownership or operation of the Business or the Included Assets or the Transferred Facilities from and after the Effective Time (other than out of the release or disposal of Hazardous Substances at, in, on, under or from the Transferred Facilities, to the extent such release or disposal is first created, occurs or arises prior to the Effective Time) or out of the release or disposal of Hazardous Substances at, in, on, under or from the Transferred Facilities, to the extent such release or disposal is first created, occurs or arises after the Effective Time; (i) all employment and employee benefits-related liabilities, obligations and commitments relating to (1) the Transferred Employees (or any dependent or beneficiary of any such employee) that (A) arise out of such employee’s employment with Buyer or its Affiliates and are incurred at or after the relevant Transfer Date, (B) Seller and Buyer have explicitly agreed that Buyer or its Affiliates shall assume pursuant to Article 6 of this Agreement, (C) solely with respect to Canadian Employees, transfer automatically to Buyer or its Affiliates under Applicable Law or (D) relate to the obligation pursuant to Section 6.1 of this Agreement to rehire or reinstate any Employee on Disability Leave (but in no event, any employment or employee benefits-related liabilities, obligations and commitments relating to any such Employee on Disability Leave that relate to any period prior to the date that such employee is hired, if at all, by Buyer in accordance with this Agreement) and (2) the failure to make an offer of employment to the Business Employees on terms compliant with Article 6 of this Agreement (clauses (1) and (2), the “Covered Employee Liabilities”), provided that, for the avoidance of doubt, the term “Covered Employee Liabilities” shall not include any Liabilities pursuant to any Seller Plan or any Plan of an Affiliate of Seller, other than any such Liabilities for which Seller, one of its Affiliates or the relevant Plan is entitled to reimbursement pursuant to the Transition Services Agreement; (j) Property Taxes that are the responsibility of Buyer pursuant to Section 7.6(a); (k) Transfer Taxes that are the responsibility of Buyer pursuant to Section 7.6(b); (l) all Liabilities, obligations and commitments arising from any injury to or death of any Person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from defects in Products manufactured by or on behalf of Buyer or its Affiliates from and after the Effective Time or from services performed by or on behalf of Buyer or its Affiliates in connection with the Products from and after the Effective Time; and (m) any loss or Liability to the extent deemed an Included Liability pursuant to Section 8.2(e), subject to the proviso in the first sentence of this Section 1.5.

Included Liabilities. Upon For the terms, and subject to the conditions purposes of this Agreement, Buyer and/or its designated Affiliates "Palm Liabilities" shall assume as of the Effective Time and shall pay, perform and discharge when due mean (without duplication) the following Liabilities, except as otherwise provided for in any other Ancillary Agreement or other express agreement of the parties: (i) all Liabilities reflected in the Palm Balance Sheet, subject to any discharge of such Liabilities subsequent to the date of the Palm Balance Sheet; (ii) all Liabilities of 3Com or its Subsidiaries that arise after the date of the Palm Balance Sheet that would be reflected in the consolidated balance sheet of Palm as of the Separation Date if such consolidated balance sheet was prepared using the same principles and only accounting policies under which the following Liabilities, of Seller and its AffiliatesPalm Balance Sheet was prepared; -3- (iii) all Liabilities that are related primarily to the Palm Business at the Separation Date but are not reflected in the Palm Balance Sheet due to mistake or unintentional omission; provided, however, that, notwithstanding clauses (a) through (m) below, Included Liabilities that no Liability shall not include any such Liabilities, obligations or commitments to the extent they are retained by Seller be considered as a Palm Liability unless 3Com or its AffiliatesSubsidiaries, on or otherwise are before the responsibility first anniversary of Seller the Distribution Date, has given Palm or its Affiliates pursuant to this Agreement Subsidiaries notice that such Liability is a Palm Liability; (whether arising from Seller’s breach or inaccuracy of a representation or warranty or pursuant to Seller’s indemnification obligations or otherwise) (collectively, the “Included Liabilities”): (aiv) all Palm Contingent Liabilities, obligations and commitments ; (v) all Liabilities (other than those under Environmental Laws) Liabilities for Taxes), whether arising out of the ownership and operation of the Businessbefore, from and after the Effective Time; (b) all Liabilities, obligations and commitments arising out of events or occurrences happening from and after the Effective Time under the Transferred Contracts that are Included Assets under Section 1.3(c) and those portions of the Included Shared Contracts that are Included Assets under Section 1.3(c) and that relate exclusively to the Business, but not including any Liability for any Default under any such Transferred Contract or Included Shared Contract occurring prior to the Effective Time; (c) all Liabilities, obligations and commitments relating to the return or claimed spoilage of Products manufactured prior to the Effective Time and returned or claimed spoiled more than thirty (30) days after the Closing Date (whether physically returned, or whether a credit, deduction or other accommodation is made); (d) all Liabilities, obligations and commitments in respect of any and all Products manufactured by Buyer or its Affiliates from and after the Effective Time; (e) all Liabilities, obligations and commitments for manufacturer’s coupons relating to Products (i) which coupons are issued, granted, delivered or otherwise made available prior to the Effective Time and are received by the clearinghouse for reimbursement more than one hundred twenty (120) days after the Closing Date and (ii) which coupons are issued, granted, delivered or otherwise made available from and after the Effective Time; (f) all Liabilities, obligations and commitments for trade and consumer promotions relating to the Products arising from trade promotion activities or events (i) that commence on or after the Closing Date Separation Date, primarily relating to, arising out of or resulting from: (ii1) that commenced the operation of the Palm Business, as conducted at any time prior to but concluded to, on or after the Closing Date; providedSeparation Date (including any Liability relating to, that the amount of Liabilities, obligations and commitments assumed by Buyer pursuant to clause (ii) in respect of any trade or consumer promotion shall be equal to the total amount of Liabilities, obligations and commitments related to such trade or consumer promotion multiplied by a fraction, the numerator of which is equal to the number of calendar days such trade or consumer promotion was available on or after the Closing Date, and the denominator of which is equal to the total number of calendar days such trade or consumer promotion was available; (g) all Liabilities, obligations and commitments for advertising for the Business for advertising airing or appearing in periods from and after the Effective Time made in the ordinary course of business consistent with past practice; (h) all Liabilities under any Environmental Law to the extent arising out of the ownership or operation of the Business resulting from any act or the Included Assets failure to act by any director, officer, employee, agent or the Transferred Facilities from and after the Effective Time representative (other than out of the release whether or disposal of Hazardous Substances at, in, on, under not such act or from the Transferred Facilities, failure to the extent act is or was within such release or disposal is first created, occurs or arises prior to the Effective Time) or out of the release or disposal of Hazardous Substances at, in, on, under or from the Transferred Facilities, to the extent such release or disposal is first created, occurs or arises after the Effective Time; (i) all employment and employee benefits-related liabilities, obligations and commitments relating to (1) the Transferred Employees (or any dependent or beneficiary of any such employee) that (A) arise out of such employee’s employment with Buyer or its Affiliates and are incurred at or after the relevant Transfer Date, (B) Seller and Buyer have explicitly agreed that Buyer or its Affiliates shall assume pursuant to Article 6 of this Agreement, (C) solely with respect to Canadian Employees, transfer automatically to Buyer or its Affiliates under Applicable Law or (D) relate to the obligation pursuant to Section 6.1 of this Agreement to rehire or reinstate any Employee on Disability Leave (but in no event, any employment or employee benefits-related liabilities, obligations and commitments relating to any such Employee on Disability Leave that relate to any period prior to the date that such employee is hired, if at all, by Buyer in accordance with this Agreement) and Person's authority)); (2) the operation of any business conducted by any member of the Palm Group at any time after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to make an offer act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority)); or (3) any Palm Assets; (vi) all Liabilities relating to, arising out of employment to or resulting from any of the Business Employees terminated, divested or discontinued businesses and operations listed or described on terms compliant with Article 6 of this Agreement (clauses (1) Schedule 1.3(a)(vi); and (2vii) all Liabilities that are expressly contemplated by this Agreement, Schedule 1.3(a)(vii), the “Covered Employee Liabilities”), provided that, for the avoidance of doubt, the term “Covered Employee Liabilities” shall not include any Liabilities pursuant to any Seller Plan Separation Agreement or any Plan of an Affiliate of Seller, other than any such Liabilities for which Seller, one of its Affiliates Ancillary Agreement (or the relevant Plan is entitled Schedules hereto or thereto) as Liabilities to reimbursement pursuant to be assumed by Palm or any member of the Transition Services Agreement; (j) Property Taxes that are the responsibility of Buyer pursuant to Section 7.6(a); (k) Transfer Taxes that are the responsibility of Buyer pursuant to Section 7.6(b); (l) Palm Group, and all Liabilitiesagreements, obligations and commitments arising from any injury to or death Liabilities of any Person or damage to or destruction member of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability the Palm Group under this Agreement or any other legal or equitable theory arising from defects in Products manufactured by or on behalf of Buyer or its Affiliates from and after the Effective Time or from services performed by or on behalf of Buyer or its Affiliates in connection with the Products from and after the Effective Time; and (m) any loss or Liability to the extent deemed an Included Liability pursuant to Section 8.2(e), subject to the proviso in the first sentence of this Section 1.5Ancillary Agreements.

Included Liabilities. Upon For the terms, and subject to the conditions purposes of this Agreement, Buyer and/or its designated Affiliates "SSI Liabilities" shall assume as of the Effective Time and shall pay, perform and discharge when due mean (without duplication) the following Liabilities, except as otherwise provided for in any other Ancillary Agreement: (i) all Liabilities that are expressly listed on Schedule 1.3(a)(i); (ii) all Liabilities reflected in the SSI Balance Sheet, subject to any discharge of such Liabilities subsequent to the date of the SSI Balance Sheet; (iii) all Liabilities of LSI Logic or its Subsidiaries that arise after the date of the SSI Balance Sheet that, had such Liability arisen before the date of the SSI Balance Sheet, would have been reflected in the SSI Balance Sheet in accordance with the same principles and only accounting policies under which the following LiabilitiesSSI Balance Sheet was prepared, of Seller including any such Liabilities that are related primarily to the Assets described in Section 1.2(a)(iii) and its AffiliatesSection 1.2(a)(iv); (iv) all Liabilities that are related primarily to the SSI Business at the Separation Date but are not reflected in the SSI Balance Sheet due to mistake or unintentional omission; provided, however, thatthat no Liability shall be an SSI Liability unless LSI Logic or its Subsidiaries, notwithstanding clauses on or before the second anniversary of the Separation Date, has given SSI or its Subsidiaries notice that such Liability is an SSI Liability; (av) through all SSI Contingent Liabilities; (mvi) belowall SSI Payables; (vii) all SSI Employment Liabilities; (viii) all Liabilities whether arising before, Included on or after the Separation Date, primarily relating to, arising out of or resulting from: (1) the operation of the SSI Business, as conducted at any time prior to, on or after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of LSI Logic or any LSI Logic Subsidiary, including SSI (whether or not such act or failure to act is or was within such Person's authority)); (2) the operation of any business conducted by any member of the SSI Group at any time after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of LSI Logic or any LSI Logic Subsidiary, including SSI (whether or not such act or failure to act is or was within such Person's authority)); or (3) any SSI Assets; (ix) all Liabilities relating to, arising out of or resulting from any of the terminated, divested or discontinued businesses and operations listed or described on Schedule 1.3(a)(ix); and (x) all other Liabilities that are expressly contemplated by this Agreement, the Separation Agreement or any other Ancillary Agreement (or the exhibits or schedules hereto or thereto) as Liabilities to be retained or assumed by SSI or any member of the SSI Group, and all agreements, obligations and Liabilities of any member of the SSI Group under this Agreement or any of the Ancillary Agreements. Notwithstanding the foregoing, the SSI Liabilities shall not include any such Liabilities, obligations or commitments the Excluded Liabilities referred to the extent they are retained by Seller or its Affiliates, or otherwise are the responsibility of Seller or its Affiliates pursuant to this Agreement (whether arising from Seller’s breach or inaccuracy of a representation or warranty or pursuant to Seller’s indemnification obligations or otherwisein Section 1.3(b) (collectively, the “Included Liabilities”): (a) all Liabilities, obligations and commitments (other than those under Environmental Laws) arising out of the ownership and operation of the Business, from and after the Effective Time; (b) all Liabilities, obligations and commitments arising out of events or occurrences happening from and after the Effective Time under the Transferred Contracts that are Included Assets under Section 1.3(c) and those portions of the Included Shared Contracts that are Included Assets under Section 1.3(c) and that relate exclusively to the Business, but not including any Liability for any Default under any such Transferred Contract or Included Shared Contract occurring prior to the Effective Time; (c) all Liabilities, obligations and commitments relating to the return or claimed spoilage of Products manufactured prior to the Effective Time and returned or claimed spoiled more than thirty (30) days after the Closing Date (whether physically returned, or whether a credit, deduction or other accommodation is made); (d) all Liabilities, obligations and commitments in respect of any and all Products manufactured by Buyer or its Affiliates from and after the Effective Time; (e) all Liabilities, obligations and commitments for manufacturer’s coupons relating to Products (i) which coupons are issued, granted, delivered or otherwise made available prior to the Effective Time and are received by the clearinghouse for reimbursement more than one hundred twenty (120) days after the Closing Date and (ii) which coupons are issued, granted, delivered or otherwise made available from and after the Effective Time; (f) all Liabilities, obligations and commitments for trade and consumer promotions relating to the Products arising from trade promotion activities or events (i) that commence on or after the Closing Date or (ii) that commenced prior to but concluded on or after the Closing Date; provided, that the amount of Liabilities, obligations and commitments assumed by Buyer pursuant to clause (ii) in respect of any trade or consumer promotion shall be equal to the total amount of Liabilities, obligations and commitments related to such trade or consumer promotion multiplied by a fraction, the numerator of which is equal to the number of calendar days such trade or consumer promotion was available on or after the Closing Date, and the denominator of which is equal to the total number of calendar days such trade or consumer promotion was available; (g) all Liabilities, obligations and commitments for advertising for the Business for advertising airing or appearing in periods from and after the Effective Time made in the ordinary course of business consistent with past practice; (h) all Liabilities under any Environmental Law to the extent arising out of the ownership or operation of the Business or the Included Assets or the Transferred Facilities from and after the Effective Time (other than out of the release or disposal of Hazardous Substances at, in, on, under or from the Transferred Facilities, to the extent such release or disposal is first created, occurs or arises prior to the Effective Time) or out of the release or disposal of Hazardous Substances at, in, on, under or from the Transferred Facilities, to the extent such release or disposal is first created, occurs or arises after the Effective Time; (i) all employment and employee benefits-related liabilities, obligations and commitments relating to (1) the Transferred Employees (or any dependent or beneficiary of any such employee) that (A) arise out of such employee’s employment with Buyer or its Affiliates and are incurred at or after the relevant Transfer Date, (B) Seller and Buyer have explicitly agreed that Buyer or its Affiliates shall assume pursuant to Article 6 of this Agreement, (C) solely with respect to Canadian Employees, transfer automatically to Buyer or its Affiliates under Applicable Law or (D) relate to the obligation pursuant to Section 6.1 of this Agreement to rehire or reinstate any Employee on Disability Leave (but in no event, any employment or employee benefits-related liabilities, obligations and commitments relating to any such Employee on Disability Leave that relate to any period prior to the date that such employee is hired, if at all, by Buyer in accordance with this Agreement) and (2) the failure to make an offer of employment to the Business Employees on terms compliant with Article 6 of this Agreement (clauses (1) and (2), the “Covered Employee Liabilities”), provided that, for the avoidance of doubt, the term “Covered Employee Liabilities” shall not include any Liabilities pursuant to any Seller Plan or any Plan of an Affiliate of Seller, other than any such Liabilities for which Seller, one of its Affiliates or the relevant Plan is entitled to reimbursement pursuant to the Transition Services Agreement; (j) Property Taxes that are the responsibility of Buyer pursuant to Section 7.6(a); (k) Transfer Taxes that are the responsibility of Buyer pursuant to Section 7.6(b); (l) all Liabilities, obligations and commitments arising from any injury to or death of any Person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from defects in Products manufactured by or on behalf of Buyer or its Affiliates from and after the Effective Time or from services performed by or on behalf of Buyer or its Affiliates in connection with the Products from and after the Effective Time; and (m) any loss or Liability to the extent deemed an Included Liability pursuant to Section 8.2(e), subject to the proviso in the first sentence of this Section 1.5below.