Common use of Assumption of Certain Liabilities Clause in Contracts

Assumption of Certain Liabilities. Subject to Section 2.7, Buyer shall assume, or cause XII or XSL to assume, and to the extent not discharged at the Closing Date, the following liabilities and obligations of Seller and the Subsidiary (collectively, the "Assumed Liabilities"): (a) the liabilities of Seller and the Subsidiary in the amounts reflected or reserved against on the Balance Sheet or disclosed in this Agreement or Schedules hereto; (b) the liabilities of Seller and the Subsidiary arising in the ordinary course of business between the Balance Sheet Date and the Closing Date; (c) the following liabilities and obligations incurred prior to, on or since the Balance Sheet Date in the ordinary course of business: (i) a claim made by a current or former employee, consultant or independent contractor of either Seller or the Subsidiary for compensation at such Person's customary rate of compensation, but excluding any severance pay or claims with respect to wrongful termination, sexual harassment, breach of contract or other wrongful acts of Seller or the Subsidiary; (ii) a claim for any damages or that portion thereof arising from claims first made on or after the Closing Date that arise from misappropriation or infringement of any intellectual property right of any Person by Seller or Subsidiary; (iii) all warranty claims except warranty claims in excess of the reserve for warranty claims on the Balance Sheet where a manufacturing or design defect of which Seller had Knowledge that was not disclosed to Buyer proximately caused the warranty claims; and (iv) other liabilities of Seller and the Subsidiary that were incurred in the ordinary course of business and did not become due on or before the Closing Date in accordance with the customary practices of Seller or the Subsidiary; and (d) obligations under each Contract listed on Part 4.13 of the Disclosure Schedule and other Contracts not required to be listed on Part 4.13 of the Disclosure Schedule arising in the ordinary course of business, except to the extent any such Contract is set forth in Schedule 2.2. The allocation of specific Assumed Liabilities among each of Buyer, XII and XSL is specified in Schedule 2.6.

Assumption of Certain Liabilities. Subject (a) Upon the terms and subject to Section 2.7the conditions of this Agreement, Buyer shall assumeat the Closing, or Purchaser agrees to cause XII or XSL the Designated Purchasers to assume, pay, perform and to the extent not discharged at discharge when due, all liabilities or obligations listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), whether arising before or after the Closing Dateand whether known or unknown, the following liabilities and obligations of Seller and the Subsidiary fixed or contingent (collectively, the "Assumed Liabilities"): (ai) the all liabilities of Seller and the Subsidiary in the amounts reflected or reserved against set forth on the Closing Date Balance Sheet or disclosed in this Agreement or Schedules hereto; (b) the Sheet, other than any such liabilities of Seller and the Subsidiary arising in the ordinary course of business between the Balance Sheet Date and the Closing Date; (c) the following liabilities and obligations incurred prior to, on or since the Balance Sheet Date in the ordinary course of business: (i) a claim made by a current or former employee, consultant or independent contractor of either Seller or the Subsidiary for compensation at such Person's customary rate of compensation, but excluding any severance pay or claims with respect to wrongful termination, sexual harassment, breach of contract or other wrongful acts of Seller or the Subsidiarythat are Excluded Liabilities; (ii) a claim for any damages all liabilities and obligations of Sellers arising under or that portion thereof arising from claims first made on or after pursuant to the Closing Date that arise from misappropriation or infringement of any intellectual property right of any Person by Seller or SubsidiaryAcquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-how; (iii) all warranty claims except warranty claims liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreement; (iv) the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the reserve for warranty claims Contingency Reserves reflected or shown on the Closing Date Balance Sheet where a manufacturing or design defect of which Seller had Knowledge that was not disclosed to Buyer proximately caused the warranty claimsSheet; and (ivv) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis. (b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller and the Subsidiary that were incurred in the ordinary course (or any predecessor owner of all or part of its business and did assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not become due being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following: (i) all liabilities and obligations which are attributable to any of the Excluded Assets, or associated with the realization of the benefits of any of the Excluded Assets; (ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on or before the Closing Date in accordance with the customary practices of Seller or the Subsidiary; andBalance Sheet; (diii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14; (iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under each Contract listed on Part 4.13 any severance plan or arrangement of Parent, Sellers, the Disclosure Schedule and other Contracts not required to be listed on Part 4.13 of the Disclosure Schedule arising in the ordinary course of businessPurchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement; (v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events; (vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount; (vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures; (viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and (ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such Contract other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is set forth not allocable to the Business on a pro rata basis. (c) Notwithstanding anything to the contrary in Schedule 2.2. The allocation this Section 2.03, to the extent a liability is included in the calculation of specific Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liabilities among each of BuyerLiability, XII and XSL whether or not such liability is specified in Schedule 2.6listed as an Excluded Liability under Section 2.03(b).