Common use of Assumption of Assumed Liabilities Clause in Contracts

Assumption of Assumed Liabilities. (a) As additional consideration to Seller included in the Purchase Price and in exchange for the performance by Seller of its obligations hereunder, effective as of the Closing Date, Buyer hereby assumes and agrees to pay, discharge and perform as and when due, (i) all liabilities and obligations (including all obligations with respect to performance) arising under each of the Contracts after the Closing Date, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are referred to herein as the "Assumed Liabilities." (b) Subject to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or the operation of the Business on or prior to the Closing Date including, without limitation, taxes attributable to the period on and before Closing but not due and payable as of the Closing; (iii) any liability, obligation or expense heretofore or which may hereafter be incurred with respect to the Encompass Systems and Soil Sentry Systems placed in service by Seller prior to Closing based on such systems not being Year 2000 Compliant or incurred with respect to such systems to render them Year 2000 Complaint; and (iv) any liability, obligation or expense heretofore or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation"). (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities and, after Closing, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilities.

Assumption of Assumed Liabilities. In connection with the Contribution in Kind, Buyer will assume from and after the Closing, and Buyer shall thereafter pay, perform and discharge, all debts, obligations and liabilities only to the extent related primarily to the operation or conduct of the Business or the Transferred Assets, other than the Excluded Liabilities, including the following (collectively, the “Assumed Liabilities”) (each of which is an Assumed Liability only to the extent related primarily to the operation or conduct of the Business or the Transferred Assets): (a) As additional consideration to Seller all debts, liabilities and obligations of Seller, including accounts and notes payable; (b) all debts, liabilities and obligations under the Assigned Contracts and Permits included in the Purchase Price Transferred Assets; (c) all debts, liabilities and obligations of Seller for Inventory ordered or committed prior to the Closing Date and delivered after the Closing Date; (d) all debts, liabilities and obligations of Seller which relate to the Employees, including (i) liabilities relating to Seller’s employment of, termination of employment of, provision of benefits to, and compensation of employees of the Business, including any wrongful discharge or other wrongful employment practice, unfair labor practice, claims for benefits (including any liability for severance indemnity (trattamento di fine rapporto), 13th and 14th month salary, overtime pay, payroll taxes, unused vacation, social security, profit sharing or for claims arising under worker’s compensation Laws), or similar claims or causes of action; and (ii) liabilities relating to any collective bargaining agreement with or relating to any Employees, including the liabilities and obligations of Buyer set forth in exchange (A) the Verbale di accordo dated April 20, 2004, among Seller, Buyer and the Unione degli Industriali dellla Provincia di Sondrio, (B) the Accordo dated April 20, 2004 among Buyer and the various signatories thereto and (C) the Verbale di accordo dated May 19, 2004, among Seller, Buyer and the union of “dirigenti” (collectively, the “Union Agreement”); (e) except as set forth in Section 2.5(f), all debts, liabilities and obligations with respect to Actions arising out of, resulting from, or relating primarily to the operation or conduct of the Business or the Transferred Assets, at Law or otherwise, including all debts, liabilities and obligations with respect to any claim, whether made before or after Closing, regarding whether Seller’s fuel dispensers which include a vapor recovery system infringe any of Gilbarco Inc.’s patents or patent applications on such vapor recovery system (the “Gilbarco Claims”); (f) all Environmental Liabilities, except for those Environmental Liabilities identified in the performance Environmental Report and which are required to be remediated by applicable authorities as a result of Seller’s reporting to such applicable authorities such Environmental Liabilities (including any remediation that may be required by applicable authorities as a result of the October 2003 Site Characterization Plan submitted by Seller with respect to Talamona); (g) all debts, liabilities and obligations to customers of its obligations hereunder, effective the Business for orders outstanding as of the Closing Date, Buyer hereby assumes and agrees to pay, discharge and perform as and when due, ; (ih) all debts, liabilities and obligations (including all obligations with respect to performance) arising under each of the Contracts after the Closing Date, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are referred to herein as the "Assumed Liabilities." (b) Subject to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or the operation customers of the Business under written warranty agreements given by Seller to its customers on or prior to the Closing Date including, without limitation, taxes attributable relating to products sold or services rendered prior to the period on and before Closing but not due and payable as of the ClosingDate; (iiii) all debts, liabilities and obligations arising out of, resulting from, or relating to injuries to individuals or property as a result of the ownership, use or possession of any liabilityproduct manufactured, obligation sold, leased or expense heretofore or which may hereafter be incurred with respect delivered by Seller relating primarily to the Encompass Systems and Soil Sentry Systems placed in service by Seller Business prior to to, on or after the Closing based on such systems not being Year 2000 Compliant or incurred with respect to such systems to render them Year 2000 ComplaintDate; and (ivj) all debts, liabilities and obligations, whether known, unknown, accrued, contingent or otherwise, not otherwise enumerated above which arise out of or are related primarily to the ownership or operation of any liabilityTransferred Assets or the Business prior to, obligation on or expense heretofore or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in after the United States District Court in the Northeast District of Ohio (the "BP Litigation"). (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect Closing Date without regard to any claims, damages or liability arising with respect to accruals set forth on the Financial Statements. Except for the Assumed Liabilities andLiabilities, Buyer will not assume any other debts, obligations and liabilities of Seller, whether arising before or after Closingthe Closing Date, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnifywhether known or unknown, defend and hold harmless Buyer with respect to any claimsfixed, damages absolute, contingent, material or liability arising with respect to the Excluded Liabilitiesimmaterial, matured or unmatured.

Assumption of Assumed Liabilities. (a) As additional consideration Subject to the conditions set forth in this Agreement, at the Closing, the Seller included in will transfer and assign the Purchase Price Assumed Liabilities to the Purchaser, and in exchange for the performance by Seller of its obligations hereunderPurchaser will assume the Assumed Liabilities from the Seller, all to be effective as of the Closing. The “Assumed Liabilities” consist of: (a) obligations of Seller to be performed after the Closing Datepursuant to the Assumed Contracts, Buyer hereby assumes subject to Section 1.6(g) (b) the Liabilities set forth on Schedule 1.5(b); and (c) obligations of the Seller for which the vehicles described in Section 1.2(a) act as security pursuant to a perfected security interest or lien in effect as of the date of this Agreement. (d) Liabilities of the Seller arising from the assignment of the Assumed Contracts to Purchaser without the consent of any other party to such Assumed Contract. (e) those Liabilities of Purchaser to perform warranty work as described in Section 1.8; (f) all credit card debt owed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and agrees ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to paythe extent incurred for the benefit of the Seller, discharge in the Ordinary Course of Business for the Seller, consistent with past practices of the Seller; (g) recognition of all unused accrued vacation time for Retained Employees (as defined in and perform as more particularly described in Section 4.13); (h) accrued and when dueunpaid payroll costs to be reimbursed by Purchaser to Seller pursuant to Section 1.4(b), to the extent incurred in the Ordinary Course of Business of Seller, consistent with past practices of Seller; (i) all liabilities and obligations (including all obligations Liabilities of the Seller with respect to performance) arising under each wages, salaries, bonuses, accrued vacation, personal or sick days, benefits and any other compensation package incurred by Seller, so long as such Liabilities are reflected on the Balance Sheet of the Contracts after Seller; and (j) all trade payables incurred by the Closing Date, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described Seller in the preceding sentence are referred to herein Ordinary Course of Business as the "Assumed Liabilities." (b) Subject to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or the operation close of the Business on or prior to the day preceding the Closing Date including, without limitation, taxes attributable to the period on and before Closing but not due and payable as of the Closing; (iii) any liability, obligation or expense heretofore or which may hereafter be incurred with respect to the Encompass Systems and Soil Sentry Systems placed in service by Seller prior to Closing based on such systems not being Year 2000 Compliant or incurred with respect to such systems to render them Year 2000 Complaint; and (iv) any liability, obligation or expense heretofore or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation")Date. (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities and, after Closing, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilities.

Assumption of Assumed Liabilities. (a) As additional consideration Upon the terms, and subject to Seller included in the Purchase Price and in exchange for the performance by Seller of its obligations hereunderconditions, set forth herein, Buyer agrees, effective as of the Closing DateEffective Time, Buyer hereby assumes to assume and agrees to pay, satisfy and discharge and perform as and when due, the following Liabilities of Seller and its applicable Affiliates, which shall exclude the Retained Liabilities (i) all liabilities and obligations (including all obligations with respect to performance) arising under each of the Contracts after the Closing Date, except for such post-Closing liabilities that are expressly set forth as Excluded following Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are being herein collectively referred to herein as the "“Assumed Liabilities."”): (a) the Specified Current Liabilities as of immediately prior to the Effective Time; (b) Subject subject to Section 5.9, all Liabilities arising under the terms (or from the performance) of the Transferred Contracts and Assumed Leases at or after the Effective Time, other than any Liability resulting from a breach of the applicable Transferred Contract or Assumed Lease by Seller prior to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have Closing; (c) any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law Taxes attributable to or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of imposed on the Purchased Assets or the operation of the Business on or prior recordkeeping, trust and custody and discretionary business of Buyer and its Affiliates, in each case with respect to the any Post-Closing Date including, without limitation, taxes attributable Tax Period and (ii) Transfer Taxes for which Buyer is liable pursuant to the period on and before Closing but not due and payable as of the ClosingSection 9.3; (iiid) all Liabilities (i) arising out of the employment or termination of employment of any liability, obligation or expense heretofore or which may hereafter be incurred Transferred Employees (including all Liabilities with respect to the Encompass Systems their dependents and Soil Sentry Systems placed in service beneficiaries), whenever incurred, that are not expressly retained by Seller prior or its Affiliates pursuant to Closing based on Section 5.2; (ii) relating to the failure of Buyer and its Affiliates to timely provide a Comparable Job Offer to any Business Employee, including any severance, notice or other termination payments resulting from a termination of employment of such systems not being Year 2000 Compliant Business Employee with Seller and its Affiliates (any such Liabilities or incurred with respect payments, the “Inadequate Offer Payments”); and (iii) that are assumed by Buyer or one of its Affiliates pursuant to such systems Section 5.2; (e) all Liabilities (other than those assumed pursuant to render them Year 2000 Complaintany other clause of this Section 2.3) relating to, resulting from or arising out of the Purchased Assets (other than the Transferred Contracts and Assumed Leases, which are subject to clause (b) of this Section 2.3) from and after the Effective Time; and (ivf) any liability, obligation or expense heretofore or which may hereafter be incurred by Liability set forth in Section 2.3(f) of the Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation")Disclosure Letter. (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities and, after Closing, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilities.

Assumption of Assumed Liabilities. (a) As additional consideration to Seller included in the Purchase Price and in exchange for the performance by Seller of its obligations hereunder, effective Effective as of the Closing DateClosing, Buyer hereby assumes and agrees subject to paythe terms and conditions of this Agreement, discharge the Purchaser shall assume only the following liabilities and perform as and when dueobligations (collectively, the “Assumed Liabilities”): (ia) all liabilities and obligations of the Seller under each Assumed Contract but only to the extent such liabilities and obligations (including i) are required to be performed after the Closing, (ii) (x) accrue and relate to the operations of the Business on or subsequent to the Closing Date or (y) have been accrued for in the Financial Statements, and (iii) do not arise from or relate to a breach or alleged breach by the Seller or any of its Affiliates of any obligations under such Assumed Contract on or prior to the Closing; (b) all liabilities and obligations with respect to performance) arising under each trade accounts payable of the Contracts after Seller primarily related to the Closing DateBusiness, except for to the extent that such post-Closing liabilities that are expressly set forth as Excluded Liabilities included in Section 2.04(bthe calculation of the Business’ Final Book Value; (c) below, and (ii) those additional all liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are referred to herein as the "Assumed Liabilities." (b) Subject to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual in connection with his homes of the Seller that are under construction, under development or her employment completed by the Seller, other than any homes sold and closed by the Seller before or after prior to the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time(each such home, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closinga “Sold Home”), including, without limitation, any liabilities and obligations under any and all of Seller's severance benefitsrelating to, medical resulting from, or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employeeany product liability, warranty liability or similar claim for damage, loss, reimbursement, indemnity, repair, cost or expense (including with respect to Warranty Work), which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty, or construction defect; (iid) for any period after the occupancy, ownership, use or operation two (2) year anniversary of the Purchased Assets or the operation of the Business on or prior Closing Date, all liabilities and obligations with respect to the Closing Date Sold Homes, including, without limitation, taxes attributable to the period on and before Closing but not due and payable as relating to, resulting from, or arising out of the Closing; (iii) any product liability, obligation warranty liability or similar claim for damage, loss, reimbursement, indemnity, repair, cost or expense heretofore or which may hereafter be incurred (including with respect to the Encompass Systems and Soil Sentry Systems placed in service by Seller prior to Closing Warranty Work), which arises out of or is based on such systems not being Year 2000 Compliant upon any express or incurred with respect to such systems to render them Year 2000 Complaintimplied representation, warranty, agreement or guaranty, or construction defect; and (ive) any liability, obligation or expense heretofore or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation"). (c) Buyer hereby agrees to indemnify, defend all liabilities and hold harmless Seller with respect to any claims, damages or liability arising with respect obligations to the Assumed Liabilities andextent (i) expressly set forth in Section 6.3(d), after Closing, Section 6.4 or Section 6.10; or (ii) entered into in accordance with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilitieslast sentence of Section 1.7.

Assumption of Assumed Liabilities. At the Closing and on the terms and subject to the conditions set forth in this Agreement, Buyer agrees to assume the following Liabilities of the Company (the “Assumed Liabilities”): (a) As additional consideration all executory Liabilities arising or to Seller included in the Purchase Price and in exchange for the performance by Seller of its obligations hereunder, effective as of be performed after the Closing Date, Buyer hereby assumes and agrees to pay, discharge and perform as and when due, under all (i) all liabilities Acquired Contracts and obligations (including all obligations with respect to performance) arising under each of the Contracts after the Closing DateAcquired Leases, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities Acquired Contracts and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations Acquired Table of Contents Leases described in (i) to the preceding sentence extent the same are referred amended after the date of this Agreement in accordance with this Agreement, (iii) Acquired Contracts and Acquired Leases entered into after the date of this Agreement in accordance with the provisions of this Agreement and (iv) those Acquired Contracts and Acquired Leases entered into after the date of this Agreement not in accordance with the provisions of this Agreement that Buyer expressly agrees to herein as assume, in each case other than any Liability arising out of or relating to a breach of any Acquired Contract that occurred prior to the "Assumed Liabilities."Closing; (b) Subject to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller Liability arising under law or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations Environmental Law arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or from the operation of the Business on or prior to after the Closing Date includingor the leasing, without limitationownership or operation of the real property listed on Schedule 2.1(a)(i), taxes attributable as such schedule may be updated from time to the period on and before Closing but not due and payable as of time pursuant to Section 10.11(b) or Section 2.3(a), by Buyer or any other Purchasing Company after the Closing; (iiic) all of the Company’s accounts payable for goods and services exclusively related to the Business incurred in the Ordinary Course of Business that are either reflected on the Latest Balance Sheet or related to the Business and incurred by the Company in the Ordinary Course of Business between the date of the Latest Balance Sheet and the Closing (other than accounts payable to Insiders or Affiliates of the Company), and that remain unpaid without having given rise to a breach at the Closing; (d) any liability, obligation or expense heretofore or which may hereafter be incurred with respect Liability related to the Encompass Systems and Soil Sentry Systems placed in service by Seller prior to Closing based on such systems not being Year 2000 Compliant or incurred with respect to such systems to render them Year 2000 ComplaintRolled-Over Accrued Vacation; and (ive) any liabilityall of the Liabilities of the Company related to the Business and described on Schedule 2.4(e), obligation or expense heretofore or which as such schedule may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation"updated from time to time pursuant to Section 10.11(b)or Section 2.3(a). (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities and, after Closing, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilities.

Assumption of Assumed Liabilities. Buyer shall (a) As additional consideration assume and agree to pay and satisfy only those obligations and liabilities of Seller included as reflected on that certain Exhibit "B" attached hereto and incorporated by reference hereby; and (b) pursuant to a lease assignment and assumption agreement to be executed and delivered at the Closing (the "Lease Assumption Agreement") in the Purchase Price form of Exhibit "C" hereto, assume and in exchange for the performance by agree to pay and satisfy only those obligations and liabilities of Seller of its obligations hereunder, effective as of the Closing Date, Buyer hereby assumes accruing under that certain lease agreement dated ________ between Seller and agrees to pay, discharge _____________ from and perform as and when due, (i) all liabilities and obligations (including all obligations with respect to performance) arising under each of the Contracts after the Closing Date(collectively, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are referred to herein as the "Assumed Liabilities." ). Except for the Assumed Liabilities, Buyer shall not assume, and Seller shall be and remain liable for, any and all obligations, liabilities and indebtedness of Seller, whether due or to become due, absolute or contingent, direct or indirect, or asserted or unasserted and whether relating to Seller, Seller's business, the Assets or otherwise. Seller shall indemnify Buyer and Buyer's officers, directors and affiliates from and against any and all losses (bincluding attorneys' fees and costs) Subject arising out of or in any way related to medical malpractice claims against Seller or Shareholder, whether vested or contingent, as of the date of this Agreement. The following items shall be apportioned as of 11:59 p.m. on the day preceding the Closing: (i) personal property taxes, sewer rents and charges and other state, county, metropolitan and municipal taxes and assessments and charges affecting the Assets; (ii) rents and other payments under any of the Contracts; (c) charges for water, electricity, gas, oil, steam and all other utilities; and (iv) such other items as are customarily apportioned in connection with the sale of similar property, including employee salaries, expenses and taxes, all such items prior to such time being for the account of Seller and all such times after such time being the account of Buyer. At the Closing, Seller or Buyer, as the case may be, shall deliver to the other provisions of a check for the net amount owing under this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or the operation of the Business on or prior to the Closing Date including, without limitation, taxes attributable to the period on and before Closing but not due and payable as of the Closing; (iii) any liability, obligation or expense heretofore or which may hereafter be incurred with respect to the Encompass Systems and Soil Sentry Systems placed in service by Seller prior to Closing based on such systems not being Year 2000 Compliant or incurred with respect to such systems to render them Year 2000 Complaint; and (iv) any liability, obligation or expense heretofore or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation")Section 2. (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities and, after Closing, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilities.

Assumption of Assumed Liabilities. From and after the Effective Time, Buyer shall assume from the Seller or the Selling Subsidiaries, as applicable, and fully pay, discharge, satisfy and perform when due, only the following debts, liabilities, or obligations (collectively, the “Assumed Liabilities”): (a) As additional consideration to all of the debts, liabilities and obligations of Seller and the Selling Subsidiaries arising under the Contracts included in the Purchase Price Marine Assets; (b) all of the debts, liabilities and obligations assumed by Buyer pursuant to Section 5.4; (c) [Reserved.] (d) trade accounts payable and accrued liabilities, in exchange each case, to the extent reflected in the Net Working Capital on the Final Closing Statement, excluding, for the performance by avoidance of doubt, liabilities for Income Taxes of Seller and the Selling Subsidiaries; (e) all liabilities and obligations for the payment of its obligations hereunder, effective any checks related to the Business issued prior to the Closing Date which have not been paid as of the Closing Date, Buyer hereby assumes and agrees to pay, discharge and perform as and when due, ; and (if) all liabilities and obligations (including all obligations with respect to performance) arising under each of the Contracts after the Closing Date, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are referred to herein as the "Assumed Liabilities." (b) Subject to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller and the Selling Subsidiaries solely related to the Business incurred in the ordinary course consistent with past practice in both type and amount (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all United States worker’s compensation claims (subject to clause (g) of Seller's severance benefitsthe definition of Designated Pre-Closing Liabilities)), medical or other insurance coveragesexcluding, retirement benefits or any other benefit or obligation for the avoidance of doubt, (i) liabilities for Taxes of Seller of whatsoever nature, arising out of and the employment relationship between Seller Selling Subsidiaries (except to the extent such Taxes are reflected in the Net Working Capital on the Final Closing Statement) and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or the operation of the Business on or prior to the Asset Related Designated Pre-Closing Date including, without limitation, taxes attributable to the period on Liabilities and before Closing but not due and payable as of the Closing; (iii) subject to Section 5.17, items 6, 7 and 8 on Section 3.25 of the Seller Disclosure Letter. Buyer’s obligations under this Section 2.3 will not be subject to offset or reduction by reason of any liabilityactual or alleged breach of any representation, obligation warranty or expense heretofore covenant contained in this Agreement or which may hereafter be incurred with respect to the Encompass Systems and Soil Sentry Systems placed in service Ancillary Agreements or any closing or other document contemplated by Seller prior to Closing based on such systems not being Year 2000 Compliant this Agreement or incurred with respect to such systems to render them Year 2000 Complaint; and (iv) the Ancillary Agreements, any liability, obligation right or expense heretofore alleged right of indemnification hereunder or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation")for any other reason. (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities and, after Closing, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilities.

Assumption of Assumed Liabilities. At the Closing and on the terms and subject to the conditions set forth in this Agreement, the Buyer agrees to assume only the following Liabilities of the Seller Group and no others (the “Assumed Liabilities”): (a) As additional consideration all Liabilities with respect to the Acquired Contracts (including any Liabilities under any Indebtedness of the type set forth in (v) of Indebtedness), except for those Liabilities arising out of, relating to, resulting from or caused by any breach of Contract, breach of warranty, tort, infringement, environmental liability or violation of Law by the Seller included Group prior to the Closing, which, for the avoidance of doubt shall be Retained Liabilities; (b) all trade accounts payable and other current Liabilities of Seller to third parties, whether or not the underlying data or invoice is entered into the IT Assets or posted to accounts payable but provided that such accounts payable and other current Liabilities of Seller were incurred in the Purchase Price Ordinary Course of Business and not entered into in exchange for violation of this Agreement, solely to the performance by Seller extent in connection with the Business that (i) comprise a part of its obligations hereunderthe Net Working Capital, effective (ii) arose in the Ordinary Course of Business, or (iii) remain unpaid as of the Closing Date, Buyer hereby assumes and agrees to payexcluding in each case, discharge and perform as and when dueClosing Transaction Expenses; (c) (i) Transfer Taxes, (iii) all liabilities and obligations for Taxes relating to the Business, the Acquired Assets or the Assumed Liabilities for any Post-Closing Period and (including iii) Taxes for which Buyer is liable pursuant to Article VIII; (d) all obligations Liabilities with respect to performance) arising under each of the Contracts after the Closing Date, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are referred to herein as the "Assumed Liabilities." (b) Subject products sold or services provided solely to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual in extent on connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or the operation of the Business on or prior to the Closing Date includingDate, without limitationincluding with respect to credits, taxes attributable to the period on returns or allowances and before Closing but not due and payable as of the Closingwarranty liabilities; (iiie) any liability, obligation all other Liabilities arising out of or expense heretofore relating to Buyer’s ownership or which may hereafter be incurred with respect to operation of the Encompass Systems Business and Soil Sentry Systems placed in service by Seller prior to Closing based on such systems not being Year 2000 Compliant or incurred with respect to such systems to render them Year 2000 Complaintthe Acquired Assets after the Closing; and (ivf) any liabilityall liabilities and obligations allocable to Buyer in accordance with the terms of this Agreement, obligation or expense heretofore or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation")including those under Article VIII. (c) Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities and, after Closing, with respect to the Purchased Assets and the Business. Seller hereby agrees to indemnify, defend and hold harmless Buyer with respect to any claims, damages or liability arising with respect to the Excluded Liabilities.

Assumption of Assumed Liabilities. (a) As additional consideration Upon the terms and subject to Seller included in the Purchase Price and in exchange for the performance by Seller of its obligations hereunder, effective as all of the Closing Dateconditions contained herein, Buyer hereby assumes at the Closing, upon the consummation of the transactions contemplated by this Agreement (collectively, the "Acquisition Transactions") the Purchaser shall assume, and agrees agree to pay, discharge perform and perform as and when duedischarge, (i) all liabilities and obligations (including all obligations with respect to performance) arising under each only the following Liabilities of the Contracts after the Closing Date, except for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, and (ii) those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the preceding sentence are referred to herein as the "Assumed Liabilities." (b) Subject to the other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"): (i) any and all obligations of Seller arising under law or contract with respect to any individual Sellers incurred in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any Acquired Assets and all of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the employment relationship between Seller and such employee; (ii) the occupancy, ownership, use or operation of the Purchased Assets or the operation of the Business on or prior in the Ordinary Course of Business, and no others (collectively, the "Assumed Liabilities"), such that the Sellers will incur no liability in connection therewith (without, however, diminishing any right of the Purchaser Indemnitees to obtain indemnification as provided pursuant to Article XII hereof), and the Purchaser shall forever indemnify the Seller Indemnitees with respect to and shall forever hold the Sellers and Seller Indemnitees harmless from and against all such Assumed Liabilities (again, without, however, diminishing any right of the Purchaser Indemnitees to obtain indemnification as provided pursuant to Article XII hereof), including but not limited to the Closing Date including, without limitation, taxes attributable to following: the period on and before Closing but not due and payable as Liabilities of the Closing; Sellers with respect to periods after the Closing under and in connection with (iiiA) any liability, obligation or expense heretofore or which may hereafter be incurred the Leases with respect to the Encompass Systems Leased Real Property and Soil Sentry Systems placed in service by Seller prior to Closing based on such systems not being Year 2000 Compliant or incurred (B) the Owned IP Rights and the Licensed IP Rights; the Liabilities of the Sellers arising under the Purchased Contracts with respect to periods after the Closing (other than any Liability set forth on Schedule 2.4(ii) or arising out of or relating to a breach by the Sellers of such systems Purchased Contract that occurred prior to render them Year 2000 Complaintthe Closing); and (iv) the Liabilities that are attributable to or arising out of the ownership or operation of any liability, obligation Acquired Assets or expense heretofore or which may hereafter be incurred by Seller the Business with respect to periods after the Closing; the Liabilities set forth on Schedule 2.4(iv); liabilities arising in connection with lawsuit filed against Seller by BP Oil Company the Legal Proceedings listed on Schedule 5.19 attached hereto (but not any of the items listed on the continuation portion of Schedule 5.19 titled "Proof of Claim Status - Unresolved Claims," not any of the items listed in the United States District Court "Second Omnibus Objection to Allowance of Claims attached to Schedule 5.19, or titled "Proof of Claim Status - Unresolved Claims," or any of the items referred to on the "Order Granting the Reorganized Debtors' First Omnibus Objection to Allowance of Claims attached to Schedule 5.19) and liabilities arising in connection with any Legal Proceeding arising after the Closing with respect to an event, fact or circumstance that occurred or existed prior to the Closing, provided that if the Purchaser is required to pay any amount in respect of any such Legal Proceeding in excess of the amount, if any, accrued therefor on the Closing Date Working Capital Calculation, the Purchaser shall be entitled to reimbursement from the Indemnity Escrow for such excess amount as a Loss indemnifiable pursuant to Article XII hereof; provided, further, that nothing in this clause (v) shall preclude the Purchaser from seeking indemnification for any matter that may constitute a breach of any of the Sellers' representations and warranties hereunder; and provided further, that nothing herein (including without limitation this Section 2.4(v)) shall result in the Northeast District Purchaser from assuming any Excluded Liability; any Liabilities related to the Special Deferred Compensation Liabilities; any accrued employment-related Liabilities with respect to vacation, severance and other benefits owing as of Ohio the Determination Time, all of which obligations and liabilities shall be reflected in the Closing Date Working Capital Calculation prepared pursuant to Section 3.5(a) hereof; the Liabilities arising from or relating to the employment or services of any employee (i.e., accrued salaries, wages and associated items) with respect to incomplete pay periods as of the "BP Litigation"). (cDetermination Time, all of which obligations and liabilities shall be reflected in the Closing Date Working Capital Calculation prepared pursuant to Section 3.5(a) Buyer hereby agrees to indemnifyhereof, defend and hold harmless Seller any accrued obligations for matching contributions or other related payable with respect to any claims, damages or liability arising with respect Employee Benefit Plans to the Assumed Liabilities andextent reflected as a payable in the Closing Date Working Capital Calculation prepared pursuant to Section 3.5(a) hereof; provided, after Closinghowever, with respect that it is acknowledged and agreed by the Sellers that the Purchaser is not becoming legally obligated under any of the Sellers' Employee Benefit Plans under this provision or any other provision of this Agreement, and that the obligation assumed hereby is an obligation by the Purchaser to pay, on behalf of the Sellers, the matching contribution or other related payable to the Purchased Assets applicable third party plan, trustee or other Person; any accounts payable (including, for the avoidance of doubt, (i) invoiced accounts payable and (ii) accrued but uninvoiced accounts payable), and other accrued expenses owing as of the Determination Time and incurred in the Ordinary Course of Business; the portion of the Transfer Taxes payable by the Purchaser under Section 10.3; and any Tax reflected as a liability on the Final Closing Date Balance Sheet (but not any Tax referred to in item (vi) of Section 2.5 hereof). The Purchaser and the Business. Seller hereby agrees Sellers shall use their commercially reasonable efforts to indemnifyobtain, defend or cause to be obtained, any consent or approval required for the purchase hereunder of any and hold harmless Buyer with respect all Purchased Contracts (without any obligation to make any payment to the other party to any claims, damages or liability arising with respect to the Excluded Liabilitiesof such Purchased Contracts).