Common use of Assumption and Exclusion of Liabilities Clause in Contracts

Assumption and Exclusion of Liabilities. (a) At the Closing, upon the terms and subject to the conditions set forth in this Agreement, the Purchaser shall assume, and agree to pay, perform and discharge when due, the following Liabilities of Dow (the “Assumed Liabilities”): (i) all Liabilities (including any Liabilities of Dow arising from any Action against Dow or the Business) to the extent arising out of or resulting from, the conduct of the Business and the use of the Transferred Assets by a Purchaser Entity after the Closing Date; other than (A) Liabilities governed by clauses (ii)‑(v) below; (B) Liabilities described in Section 2.02(b); and no Liabilities of Dow arising from any other Action; (ii) All Liabilities, other than the Retained Accounts Payable, of Dow to the extent arising out of or resulting from, the Transferred Contracts and, to the extent transferred to Purchaser, the Partially Transferred Contracts that, in each case, do not result from (A) any material failure to perform any Transferred Contract or Partially Transferred Contract by any Dow Entity prior to the Closing Date; or (B) any material breach, material default or material violation of any Transferred Contract or Partially NYDOCS02/1012922.1 EXECUTION COPY Transferred Contract by any Dow Entity prior to the Closing Date, including any material breach of any warranty; (iii) all Post‑Closing Product Liabilities; (iv) all Taxes arising from or with respect to the Transferred Assets or the Business other than Excluded Taxes; (v) all of the Assumed HR Liabilities; and (vi) all Purchaser Environmental Liabilities.

Assumption and Exclusion of Liabilities. (a) At the Closing, upon On the terms and subject to the conditions set forth in of this Agreement, the Purchaser shall, on the Closing Date, assume and shall assume, and agree to pay, perform and discharge when due all Liabilities of the Company (including all Liabilities under the Classic Contracts to the extent they relate to the Business, regardless of whether consent is received for the assignment of such Classic Contracts, and including the Assumed Taxes) as at the Closing Date arising out of or relating to the Business, whether accrued or arising before or after the Closing, except for the Excluded Liabilities (the "Assumed Liabilities"). (b) The Company (or Classic, as applicable) shall retain, and shall be responsible for paying, performing and discharging when due, and the Purchaser shall not assume or have any responsibility for, the following Liabilities of Dow the Company as of the Closing Date which are not Assumed Liabilities (the “Assumed "Excluded Liabilities”"): (i) all Liabilities Taxes (including any Liabilities of Dow arising from any Action against Dow or the Business) to the extent arising out of or resulting fromother than property, sales, use, workers compensation and excise taxes, the conduct taxes in this parenthetical being the "Assumed Taxes") now or hereafter owed by Classic or any Affiliate of Classic, including the Business and the use of the Transferred Assets by a Purchaser Entity after the Closing Date; other than (A) Liabilities governed by clauses (ii)‑(v) below; (B) Liabilities described in Section 2.02(b); and no Liabilities of Dow arising from any other ActionCompany; (ii) All Liabilities, other than all Liabilities under the Retained Accounts Payable, of Dow Classic Contracts which do not relate to the extent arising out of or resulting from, the Transferred Contracts and, to the extent transferred to Purchaser, the Partially Transferred Contracts that, in each case, do not result from (A) any material failure to perform any Transferred Contract or Partially Transferred Contract by any Dow Entity prior to the Closing Date; or (B) any material breach, material default or material violation of any Transferred Contract or Partially NYDOCS02/1012922.1 EXECUTION COPY Transferred Contract by any Dow Entity prior to the Closing Date, including any material breach of any warrantyBusiness; (iii) all Post‑Closing Product LiabilitiesLiabilities under the Company Contracts which do not relate to the Business; (iv) all Taxes Liabilities relating to or arising from or with respect to out of the Transferred Assets or the Business other than Excluded Taxes;Assets; and (v) all obligations of the Assumed HR Liabilities; and (vi) all Purchaser Environmental LiabilitiesCompany under this Agreement and the Ancillary Agreements.

Assumption and Exclusion of Liabilities. (a) At Purchaser shall, on the ClosingClosing Date, upon the terms assume and subject to the conditions set forth in this Agreement, the Purchaser shall assume, and agree to pay, perform and discharge when due, due all liabilities of Seller as at the following Liabilities Closing Date arising out of Dow (the “Assumed Liabilities”): or relating to (i) all Liabilities the Assets, (including any Liabilities of Dow arising from any Action against Dow or the Businessii) to the extent arising out of on or resulting from, the conduct of the Business and the use of the Transferred Assets by a Purchaser Entity after the Closing Date; other than , the Transferred Employees (as defined below), and (iii) severance benefits under the terms of the ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Plan claimed by any Employee upon the termination of any such Employee on or after the Closing Date (the "Assumed Liabilities"), including, without limitation, (A) Liabilities governed by clauses (ii)‑(v) below; liabilities under all contacts, agreements and purchase orders listed on Schedule I attached hereto, (B) all accounts payable arising after the Closing. (b) Seller shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for, all liabilities of Seller as of the Closing Date other than the Assumed Liabilities described in Section 2.02(b(the "Excluded Liabilities"); , including, without limitation, (i) all liabilities relating to or arising out of the Excluded Assets and no Liabilities of Dow arising from any other Action; (ii) All Liabilitiesliabilities for vacation time, sick leave, personal leave and other than compensated time off accrued by the Retained Accounts Payable, Employees as of Dow to the extent arising out of or resulting from, the Transferred Contracts and, to the extent transferred to Purchaser, the Partially Transferred Contracts that, in each case, do not result from (A) any material failure to perform any Transferred Contract or Partially Transferred Contract by any Dow Entity prior to the Closing Date; or (B) any material breach, material default or material violation of any Transferred Contract or Partially NYDOCS02/1012922.1 EXECUTION COPY Transferred Contract by any Dow Entity prior to the Closing Date, including any material breach of any warranty; (iii) all Post‑Closing Product Liabilities; (iv) all Taxes arising from or with respect to the Transferred Assets or the Business other than Excluded Taxes; (v) all of the Assumed HR Liabilities; and (vi) all Purchaser Environmental Liabilities.

Assumption and Exclusion of Liabilities. (a) At the Closing, upon On the terms and subject to the conditions set forth in of this Agreement, the Purchaser hereby assumes and shall assume, and agree to pay, perform and discharge when due, due the following Liabilities of Dow (the “Assumed Liabilities”"ASSUMED LIABILITIES"): (i) all Liabilities (including any Liabilities of Dow the Seller at the Closing Date arising from any Action against Dow or in the Business) ordinary course of business to the extent arising out of or resulting from, the conduct of the Business and the use of the Transferred Assets by a Purchaser Entity after any accrual therefor on the Closing Balance Sheet or incurred in the ordinary course of business since the Closing Balance Sheet Date; other than (A) Liabilities governed by clauses (ii)‑(v) below; (B) Liabilities described in Section 2.02(b); , but excluding any Indebtedness and no Liabilities of Dow arising from any other ActionTaxes; (ii) All Liabilitiescurrent Liabilities included in the Net Working Capital of the Seller to the extent reflected on the Closing Balance Sheet or incurred in the ordinary course of business since the Closing Balance Sheet Date; and (iii) Liabilities arising after the Closing Date with respect to any contracts assigned to the Purchaser pursuant to Section 2.01(a). (b) The Seller shall retain, and shall be responsible for paying, performing and discharging when due, and the Purchaser shall not assume or have any responsibility for, all Liabilities of the Seller as of the Closing Date other than the Retained Accounts PayableAssumed Liabilities (the "EXCLUDED LIABILITIES"), of Dow including, without limitation: (i) all Taxes now or hereafter owed by the Seller or Atlas Texas, or attributable to the extent arising out Assets or the Business, relating to any period, or any portion of any period, ending on or resulting from, the Transferred Contracts and, to the extent transferred to Purchaser, the Partially Transferred Contracts that, in each case, do not result from (A) any material failure to perform any Transferred Contract or Partially Transferred Contract by any Dow Entity prior to the Closing Date; (ii) all Liabilities relating to or arising out of the Excluded Assets; or (B) any material breach, material default or material violation of any Transferred Contract or Partially NYDOCS02/1012922.1 EXECUTION COPY Transferred Contract by any Dow Entity prior to the Closing Date, including any material breach of any warranty;and (iii) all Post‑Closing Product Liabilities; (iv) all Taxes arising from or with respect to the Transferred Assets or the Business other than Excluded Taxes; (v) all Liabilities of the Assumed HR Liabilities; and (vi) all Purchaser Environmental LiabilitiesSeller under this Agreement.

Assumption and Exclusion of Liabilities. (a) At the Closing, upon Upon the terms and subject to the conditions set forth in of this Agreement, at the Closing, the Purchaser shall assume, assume and shall agree to pay, perform and discharge when due, the following Liabilities of Dow the Seller, except for the Excluded Liabilities (the “"Assumed Liabilities”"): (i) all Liabilities (including any Liabilities accrued on the Reference Statement of Dow arising from any Action against Dow or the Business) to the extent arising out of or resulting from, the conduct of the Business and the use of the Transferred Assets by a Purchaser Entity after the Closing Date; other than (A) Liabilities governed by clauses (ii)‑(v) below; (B) Liabilities described in Section 2.02(b); and no Liabilities of Dow arising from any other ActionNet Assets; (ii) All Liabilities, other than all Liabilities of the Retained Accounts Payable, of Dow Seller arising under the Contracts assumed by the Purchaser pursuant to the extent arising out of or resulting from, the Transferred Contracts and, to the extent transferred to Purchaser, the Partially Transferred Contracts that, in each case, do not result from (ASection 2.01(a)(xi) any material failure to perform any Transferred Contract or Partially Transferred Contract by any Dow Entity prior to the Closing Date; or (B) any material breach, material default or material violation of any Transferred Contract or Partially NYDOCS02/1012922.1 EXECUTION COPY Transferred Contract by any Dow Entity prior to the Closing Date, including any material breach of any warrantyhereof; (iii) all Post‑Closing Product LiabilitiesLiabilities arising out of or relating primarily to the Business and incurred in the ordinary course of Business since the Reference Statement Date, including but not limited to both recorded and accrued trade payables and accrued vacation; (iv) all Taxes arising from or existing mortgages together with respect to the Transferred Assets or the Business other than Excluded Taxesaccrued interest on (xx) Owned Real Property and (yy) that certain King Air C-90 airplane; (v) all Liabilities relating to the Seller's obligation to provide continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") after the Assumed HR LiabilitiesClosing for all "M&A qualified beneficiaries", as such term is defined in Q&A-4(a) of Treasury Regulation Section 54.4980B-9 with respect to asset sales ("M&A Qualified Beneficiaries") in connection with the transaction contemplated by this Agreement; and (vi) all Liabilities set forth on Schedule 2.02(a). (b) Notwithstanding subsection (a) above, the Seller shall retain, and shall be responsible for paying, performing and discharging when due, and the Purchaser shall not assume or have any responsibility for, all Liabilities of the Seller as of the Closing other than the Assumed Liabilities (the "Excluded Liabilities"), including: (i) all Excluded Taxes; (ii) all Liabilities relating to or arising out of the Excluded Assets; (iii) all Liabilities that relate to any Environmental LiabilitiesLaw, any Environmental Permit or any Hazardous Material, and that arise from or relate to any action, omission, event, circumstance or condition occurring or existing on or before the Closing, including without limitation, such Liabilities that relate to (A) any Hazardous Material at, on, under, migrating to or from, or transported to or from the Real Property, on or prior to the Closing, or any additional migration of such Hazardous Material after the Closing (including, without limitation, any Remedial Action at any time before or after the Closing relating to such Hazardous Material); (B) any Environmental Claim arising at any time that relates to the Business or the Real Property on or prior to the Closing; or (C) any noncompliance with or violation of any applicable Environmental Law or Environmental Permit relating in any way to the Business or the Real Property on or prior to the Closing, or any continuation of such violation or noncompliance after the Closing; (A) all Liabilities of the Seller and its Affiliates relating to the Plans or arising under Title IV of ERISA or the joint and several liability provisions of the Code governing the Plans or (B) arising from or in connection with the employment, retention or termination of any current and former employee, consultant or director of the Seller or its Affiliates on or prior to the Closing Date, including, without limitation, any Liabilities arising from or in connection with the transactions contemplated by this Agreement, other than the liabilities of the Seller expressly assumed by the Purchaser pursuant to Section 2.02(a) of this Agreement; (v) all Liabilities relating to Indebtedness of the Seller not assumed under Section 2.02(a); (vi) any claim by third parties for injury to the person or damage to property sustained on any Real Property on or prior to the Closing; (vii) any Liabilities expressly retained by Seller under the Agreement or the Ancillary Agreements; (viii) any Liabilities set forth on Schedule 2.02(b)(viii); and (ix) existing mortgages together with accrued interest on Excluded Owned Real Property.