Common use of Assumed and Excluded Liabilities Clause in Contracts

Assumed and Excluded Liabilities. (a) Subject to the terms and conditions set forth herein, at the Transfer Time, BioMarin shall assume and agree to pay, perform and discharge the following Liabilities, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”): (i) all Liabilities arising out of or relating to claims (including product liability claims) for injury to person or property that resulted from the use or misuse of the Products sold or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trial; (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities; (iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and (v) all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder (i) relate to the Products, (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise on or after the Transfer Time. (b) Notwithstanding any provision of this Agreement or the License Agreement to the contrary, neither BioMarin nor any of its Affiliates shall assume any Liabilities of Merck Serono or any of its Affiliates other than the Assumed Liabilities, and all such other Liabilities shall remain the sole obligation and responsibility of Merck Serono and its Affiliates (the “Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) Subject to the terms and conditions set forth herein, at the Transfer Time, BioMarin The applicable Transferred Company shall assume and agree to paybe responsible, perform from and discharge after the following LiabilitiesClosing, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”): (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or relating to claims (including product liability claims) for injury to person or property that resulted resulting from the use Transferred Companies or misuse the ownership or operation of the Products sold or used Transferred Assets, whether incurred before, on or after the Transfer TimeClosing, including other than the use or misuse of the Products Excluded Liabilities and except as otherwise expressly provided in connection with any clinical trial; this Agreement, (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities; (iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and (v) all Liabilities in respect of the Assigned Contracts but only to the extent that such and (iii) all Liabilities thereunder set forth on Annex 2.3(a) ((i) relate to the Products), (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise collectively, the “Assumed Liabilities”) and (b) one or more members of Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset, whether incurred before, on or after the Transfer Time. Closing, (bii) Notwithstanding any provision Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, except to the extent expressly assumed by Buyer under Section 6.6, (iii) all Taxes for which Seller is responsible under Section 6.5(a), (iv) except as otherwise expressly provided in this Agreement or the Ancillary Documents, any liability for any fees or expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor or consultant retained by Seller or its Subsidiaries or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the License Agreement to Ancillary Documents or the contraryconsummation of the transactions contemplated by this Agreement, neither BioMarin nor any of its Affiliates shall assume (v) any Liabilities of Merck Serono the Transferred Companies relating to, arising out of or resulting from any business currently or formerly conducted by Seller or any of its Affiliates Subsidiaries (other than Liabilities relating to, arising out of or resulting from (x) the Assumed Liabilitiesprovision of ILEC Services as conducted on the date of this Agreement or as of the Closing, (y) any similar business conducted by the Transferred Companies prior to the date of this Agreement that would constitute an ILEC Service but for the date restrictions contained in the definition thereof or (z) the Transferred Companies’ historic wireline business conducted within the Territory), and (vi) all such other Liabilities shall remain set forth on Annex 2.3(b), whether incurred before, on or after the sole obligation and responsibility of Merck Serono and its Affiliates Closing, except as otherwise expressly provided in this Agreement (collectively, the “Excluded Liabilities”). For the avoidance of doubt, the Excluded Liabilities (other than clause (v) of the definition thereof) are not intended to create and expressly exclude any obligation of any member of the Seller Group to assume or be responsible for any Liability related to the infringement, misappropriation or other violation of any Intellectual Property rights.

Assumed and Excluded Liabilities. (a) Subject to the terms and conditions set forth herein, at the Transfer Time, BioMarin shall assume and agree to pay, perform and discharge the following Liabilities, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”): (i) all Liabilities arising out of or relating to claims (including product liability claims) for injury to person or property that resulted from the use or misuse of the Products sold Products, whether prior to or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trial; (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities;; and (iviii) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b4.01(b); and (v) all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder (i) relate to the Products, (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise on or after the Transfer Time. (b) Notwithstanding any provision of this Agreement or the License Agreement to the contrary, neither BioMarin nor any of its Affiliates shall assume any Liabilities of Merck Serono or any of its Affiliates other than the Assumed Liabilities, and all such other Liabilities shall remain the sole obligation and responsibility of Merck Serono and its Affiliates (the “Merck Serono Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) Subject As of and after the Closing, and subject to consummation of the terms and conditions set forth hereinClosing, at the Transfer TimePurchaser shall assume, BioMarin shall assume and agree to pay, discharge and perform and discharge the following Liabilities, except for the Excluded obligations and Liabilities (collectively, the “Assumed Liabilities”): ): (i) all Liabilities arising out of or relating to claims associated with the Patent Lawsuit (including product liability claims) for injury to person or property that resulted from attorneys’ fees and the use or misuse other costs of defending the Products sold or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trial; (ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement; (iii) all Excluded BioMarin Tax Liabilities; (iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and (v) all Liabilities in respect of the Assigned Contracts Patent Lawsuit but only to the extent that such Liabilities thereunder (i) relate to attorney’s fees and costs arise or are incurred following the Products, Closing); (ii) do not relate to any failure to perform, the obligations and Liabilities under or other breach, default or violation by Merck Serono prior with respect to the Transfer Time Assigned Contracts and other Transferred Assets transferred to Purchaser at the Closing to be paid, discharged and performed after the Closing Date and which are, but only to the extent they are, attributable to the period after the Closing Date, provided that Purchaser shall not be responsible for any Liability of Seller or its Affiliates for Taxes (whether attributable to the period before or after the Closing Date) except as expressly provided in Sections 2.8, 2.9 and 2.12; (iii) arise on obligations and Liabilities relating to the Transferred Assets in respect of which Purchaser received a credit to the Cash Consideration pursuant to Section 2.4 or after the Transfer Time2.8; and (iv) obligations and Liabilities relating to COBRA Coverage pursuant to Section 7.6 or assumed pursuant to Section 7.10, if any. (b) Notwithstanding anything herein or in any provision of this Agreement or the License Agreement other Transaction Document to the contrary, neither BioMarin nor and regardless of any disclosure to Purchaser, except for the Assumed Liabilities specifically set forth in Section 2.3(a) above, Purchaser shall not assume or have any responsibility for any obligation or Liability of its Seller or the Canadian Subsidiary or their Affiliates shall assume that is not an Assumed Liability, including, but not limited to, any obligations or Liabilities relating to (i) the Excluded Leases, (ii) the Retained Litigation, (iii) any Contract that is not an Assigned Contract, (iv) any Employee Benefit Plans (other than obligations and Liabilities relating to COBRA Coverage pursuant to Section 7.6 or assumed pursuant to Section 7.10, if any), (v) any other Excluded Asset, (vi) the conduct or operation of Merck Serono or the Non-North America Business and any other businesses of Seller and its Affiliates other than the Assumed LiabilitiesNorth America Business, or (vii) the conduct or operation of the North America Business or the ownership of the Transferred Assets during the period prior to the close of business on the Closing Date (except for the obligations and all such other Liabilities shall remain the sole obligation assumed pursuant to Section 2.3(a)(i) and responsibility of Merck Serono and its Affiliates (iii)) (collectively, the “Excluded Liabilities”).

Assumed and Excluded Liabilities. (a) Subject to Upon the terms and subject to the conditions set forth hereinof this Agreement, at the Transfer TimeClosing, BioMarin the Buyer shall assume and shall agree to pay, perform and discharge when and as due and payable only the following Liabilities, except for Liabilities of the Excluded Liabilities Companies (collectively, the “Assumed Liabilities”): (i) all Liabilities arising out accounts payable incurred in the ordinary course of or relating to claims (including product liability claims) for injury to person or property that resulted from business and accrued on the use or misuse of the Products sold or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trialFinal Closing Statement; (ii) all Liabilities of BioMarin the Companies arising after the Closing under the Assumed Contracts (other than any Liabilities attributable to any failure by either Company to comply with the terms thereof arising on or its Affiliates set forth in Section 6.06 of this Agreementprior to the Closing Date); (iii) all Liabilities of either Company payable to the other Company (“inter-Company Liabilities”); (iv) the Assumed Indebtedness, if any, accrued on the Final Closing Statement; and (v) all obligations of each Company under its respective Workforce Optimization Client Service Agreement with Insperity (the “Insperity Agreements”), including without limitation all claims for wages or other benefits, bonuses, accrued vacation, workers' compensation, severance, retention, termination or other payments, in each case to the extent accruing after the Closing Date (all such claims being referred to collectively as the “Insperity Obligations”). (b) Notwithstanding any other provision of this Agreement, including without limitation Section 1.3(a) above, the Companies shall retain, and shall pay, perform and discharge when due, and the Buyer shall not assume or have any responsibility for, all Liabilities of the Companies other than the Assumed Liabilities (the “Excluded BioMarin Tax Liabilities”), including, without limitation: (i) all Excluded Taxes (as defined in Section 6.1(d) below); (ii) all Liabilities pursuant to Environmental Law arising out of or relating to any action, event, circumstance or condition related to either Company, the Business or the real property currently or previously occupied by either Company, in each case occurring or existing on or before the Closing, to the extent the existence of such Liabilities constitutes a breach of the representations and warranties contained herein; (iii) all Indebtedness but excluding Assumed Indebtedness; (iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure or arising from any violation of any Applicable Law prior to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); andthe Closing; (v) all Liabilities in respect of either Company to any respective shareholder or member of the Assigned Contracts but only to the extent that such Liabilities thereunder (i) relate to the Products, (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise on or after the Transfer Time. (b) Notwithstanding any provision of this Agreement or the License Agreement to the contrary, neither BioMarin nor any of its Affiliates shall assume any Liabilities of Merck Serono Companies or any of its their respective Affiliates; and (vi) all Liabilities of the Shareholders or Members or other Affiliates other than the Assumed Liabilities, and all such other Liabilities shall remain the sole obligation and responsibility of Merck Serono and its Affiliates (the “Excluded Liabilities”)either Company.

Assumed and Excluded Liabilities. (a) Subject On the Closing Date, Buyer shall execute and deliver to Seller the terms ▇▇▇▇ of Sale and conditions set forth herein, at the Transfer Time, BioMarin Assignment and Assumption Agreement pursuant to which Buyer shall assume and agree to pay, perform and discharge when due, all the following Liabilitiesliabilities and obligations of Seller arising out of the U.S. Business of any kind or nature, except whether absolute, contingent, accrued or otherwise, and whether arising before or after the Closing including, without limitation, all liabilities (i) for Tax items assumed by Buyer under Section 2.3 and (ii) under the Excluded Liabilities Assigned Contracts (collectively, the “"Assumed Liabilities”"); provided, however, that the Assumed Liabilities shall in no event include the following liabilities (the "Excluded Liabilities"): (a) any liability for claims under health insurance plans of Seller for covered Division Employees with respect to medical services rendered on or prior to the Closing (but not in respect of any sick leave or disability benefits pertaining to any period after the Closing Date regardless of when the relevant illness or condition arose); (b) any liability for Taxes for any period of any length ending on or prior to the Closing Date, excluding (i) Tax liabilities included as liabilities on the Closing Balance Sheet and (ii) the Taxes that are the responsibility of Buyer pursuant to Section 2.3; (c) all Liabilities arising out liabilities and obligations of or relating to claims (including product liability claims) Seller for injury to person or property that resulted from the use or misuse of the Products sold or used on or after the Transfer Time, including the use or misuse of the Products costs and expenses incurred in connection with any clinical trialthe preparation and negotiation of this Agreement and the Other Agreements or the consummation of the transactions contemplated by this Agreement and the Other Agreements; (iid) all Liabilities liabilities and obligations of BioMarin Seller under this Agreement or its Affiliates set forth in Section 6.06 of this Agreementthe Other Agreements; (iiie) all Excluded BioMarin Tax Liabilities; (iv) all Liabilities for Taxes arising out any liability in respect of litigation, arbitration or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and (v) all Liabilities governmental investigations pending against Seller in respect of the Assigned Contracts U.S. Business on or prior to the Closing Date including, without limitation any liability arising out of the matters disclosed in Schedule 3.12 hereto; (f) any liability in respect of the Nilssen Litigation, subject to Section 5.4; (g) except pursuant to the Ancillary Agreements, all liabilities and obligations of Seller (i) relating to any of the Excluded Assets, (ii) otherwise unrelated or to the extent unrelated to the Assets or the Business or (iii) arising from the disposition by the Seller of any business or part thereof at any time or from any facility closed by the Business before the Closing Date; (h) liability for claims made after the Closing Date for refunds (other than with respect to warranty claims), rebates, discounts, promotional credits and similar sales concessions in respect of sales made prior to the Closing Date which in the aggregate exceed the reserve for such items on the Closing Balance Sheet, but only to the extent that written notice of such Liabilities thereunder claims shall have been delivered to MagneTek prior to the first anniversary of the Closing Date; (i) relate all indebtedness for borrowed money of Seller or any Company except as set forth on Schedule 1.3(h) hereof (the "Assumed Debt"); (j) liability for (x) warranty claims (but excluding any special customer concessions) made after the Closing Date for service, repair, replacement, and similar work required under the Business' written warranties with respect to the Products, (ii) do not relate to any failure to perform, products sold or other breach, default services provided on or violation by Merck Serono prior to the Transfer Time Closing Date which in the aggregate exceed the warranty reserve on the Closing Balance Sheet, but only to the extent written notice of such claims shall have been delivered to MagneTek within the thirty-month period following the Closing Date or (y) workers' compensation claims for injuries incurred on or prior to the Closing Date (I) to the extent written notices of such claims shall have been delivered to MagneTek within the two-year period following the Closing Date and (iiiII) arise to the extent that written notices of such claims are delivered to MagneTek after the foregoing two-year period following the Closing Date only to the extent that Seller receives proceeds from insurance policies of Seller covering such claims; (k) liability for product liability claims for injuries, property damage or other losses in respect of any product manufactured by Seller on or prior to the Closing Date (I) for all such injuries, property damage or other Losses that occur on or prior to the Closing Date and (II) for all such injuries, property damage or other Losses that occur after the Transfer Time.Closing Date, but only to the extent written notice of such claims shall have been delivered to MagneTek within the thirty-month period following the Closing Date; (bl) Notwithstanding liability for warranty claims (but excluding any provision special customer concessions) in respect of this Agreement products sold by the Division but manufactured by MagneTek Italy, as to which Buyer will perform the warranty work and be entitled to reimbursement for material and labor costs at commercially reasonable rates; (m) all liabilities or the License Agreement other obligations of Seller to the contrary, neither BioMarin nor any of its Affiliates shall assume except as provided in the Ancillary Agreements or as accrued as payables on the Closing Balance Sheet; (n) except as specifically set forth in Article IX hereof or pursuant to any Liabilities Assigned Contracts set forth on Schedule 1.3(m), all liabilities and obligations of Merck Serono Seller to pay severance, termination pay, redundancy pay, pay in lieu of notice, accrued vacation pay, compensation or other benefits accrued or incurred on or prior to the Closing Date (including, but not limited to any Stay and Pay Agreements) to any current or former employee of Seller, including those employees whose employment is terminated in connection with the consummation of the transactions contemplated by this Agreement and all liabilities resulting from the termination of employment of employees of Seller on or prior to the Closing Date, including without limitation any liabilities of Seller pursuant to agreements and plans identified in Schedules hereto or any liabilities, responsibilities or obligations with respect to any Seller Plan; (o) any liability for payment of its Affiliates checks written by Seller on or prior to the Closing Date related to the Business; and (p) all liabilities, known or unknown, arising under or relating to any Environmental Law, arising at or related to any real property or facilities other than the Assumed LiabilitiesCompany Property, other than liabilities resulting from the migration of Hazardous Materials from a Company Property to any real property or facility other than a Company Property, which arise out of or relate to (x) the U.S. Business or any activities or operations occurring or conducted in connection with the U.S. Business and all such other Liabilities shall remain (y) either (i) violations of or liability under any Environmental Law occurring or existing on or prior to the sole obligation and responsibility Closing Date, or (ii) the disposal, treatment, storage, transportation, arrangement for transportation, discharge, injection, spilling, leaking, emission, dumping, recycling or release of Merck Serono and its Affiliates (the “Excluded Liabilities”)any Hazardous Material by Seller or any third-party on behalf of Seller.