Common use of Excluded Liabilities Clause in Contracts

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby.

Excluded Liabilities. Neither Buyer nor any of its Affiliates shall assume any Liabilities of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectivelysuch unassumed Liabilities, the “Excluded Liabilities”):) other than those specifically set forth in Section 2.3. Without limiting the generality of the foregoing, in no event shall Buyer or any of its Affiliates assume or incur any Liability in respect of, and Seller shall remain bound by and liable for, and shall pay, discharge or perform when due, the following Liabilities of Seller: (a) any liabilities or obligations all Liabilities for Taxes of Seller or any Affiliate of Seller, including Taxes of Seller or any Affiliate of Seller relating to the extent related to Purchased Assets for any Pre-Closing Tax Period, other than as provided in Section 7.4; (b) all Liabilities in respect of the Excluded Contracts and other Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) all product Liability, warranty and similar claims for damages or injury to person or property, claims of infringement of Intellectual Property Rights and all other Liabilities, regardless of when made or asserted, which arise out of or are based upon any liabilities events occurring or obligations in respect of Taxes of Seller actions taken or any Tax Affiliate of omitted to be taken by Seller, or any liability otherwise arising out of Seller for unpaid Taxes or incurred in connection with the use or operation of any Person under Treasury Regulation section 1.1502-6 (the Purchased Assets, on or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8before the Closing Date; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closingall Pre-Closing Environmental Liabilities; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating all Indebtedness related to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planthe Purchased Assets; (f) all Liabilities under Seller Benefit Plans except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed as provided in the Seller Disclosure SchedulesSection 2.3(b); and (g) any liabilities all Liabilities arising out of or obligations of Seller arising under or incurred in connection with the negotiation, preparation and execution of this Agreement, any certificate or other document delivered in connection herewith, Asset Purchase Agreement and any the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, including Taxes and fees and expenses of counsel, accountants and other experts.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Other than the Assumed Obligations Liabilities, Buyer is not assuming, and Seller shall retain all will not be liable for, any liability or obligation of any nature of Seller, whether mature or unmatured, liquidated or unliquidated, fixed or contingent, known or unknown, or whether arising out of acts or occurrences before, on or after the Closing Date (such liabilities other liabilities and obligations, including (collectivelythan the Assumed Liabilities, the “Excluded Liabilities”):), including, without limitation: (a) any liabilities or obligations of Seller or any of its Affiliates (i) relating to any of the Excluded Assets, including any Removed Real Property, or (ii) arising prior to the extent related to any Excluded AssetsClosing (other than as set forth in Section 1.3(b), 1.3(f) or 1.3(h)); (b) any liabilities litigation, arbitration, mediation and other claims or obligations demands of Seller in respect of Indebtednessany nature involving, related to or arising from any Removed Real Property; (c) any all liabilities or obligations in respect of for Taxes of Seller or for any Tax Affiliate of Seller, or period (including any liability of Seller for unpaid the Taxes of any other Person under Treasury Regulation section Regulations Section 1.1502-6 (or any similar provision of state, local, local or foreign law) ), as a transferee or successor, by contract Contract (for the avoidance of doubt, excluding such Taxes attributable to any period after the Closing Date under ordinary course lending, lease or commercial agreements being transferred to or assumed by Buyer) or otherwise, except for ) or Taxes for which Buyer is expressly liable pursuant arising out of Seller’s operations or ownership of the Purchased Assets prior to Section 3.4 or Section 7.8the Closing Date; (d) all costs and expenses incurred by Seller in connection with this Agreement or any obligations Seller Transaction Document, including all claims for payment of fees and/or expenses as a broker or finder in connection with the origin, negotiation or execution of this Agreement or the other Transaction Documents or the consummation of the Transaction based upon any agreement, arrangement or understanding between the claimant and Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, agents or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the ClosingRepresentatives; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any all Indebtedness of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any all liabilities or obligations arising from or relating to any Claim employees, employee-related or employee benefit-related plans of Seller; (including any workers’ compensation claimg) involving all intercompany accounts payable in respect of the Purchased Assets or that are owed by Seller to any of its Affiliates; (h) all liabilities and obligations under the Business filed Other Contracts, to the extent accruing or arising from an Actionable Incident occurring out of any nonperformance or a breach or default of such Other Contracts by Seller or its Affiliates prior to the Effective TimeClosing Date; (i) Seller’s agreement to pay directly, including any such Claims or Actionable Incidents disclosed reimburse Buyer for, certain fees, expenses, Taxes or other items but only if and to the extent expressly contemplated in this Agreement; (j) all trade accounts payable and other operating liabilities of Seller, to the Seller Disclosure Schedulesextent accruing or arising prior to the Closing Date and not included as liabilities assumed by Buyer on the Closing Statement; and (gk) all liabilities and obligations arising pursuant to Environmental Laws relating to any liabilities Owned Real Property, to the extent accruing or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of prior to the transactions contemplated hereby and therebyClosing Date.

Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, except for the Assumed Liabilities, Buyer does not and will not hereby assume any other liabilities of Seller acknowledges (such other liabilities that the sole liabilities and obligations being are not assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, collectively referred to in this Agreement as the “Excluded Liabilities”):). Seller shall retain, pay, satisfy, perform and discharge the Excluded Liabilities. Notwithstanding anything to the contrary herein, the following liabilities of Seller shall in no event be Assumed Liabilities: (a) any all liabilities or and obligations of Seller existing or accrued prior to the extent related Closing, including all liabilities and obligations relating to or arising out of, directly or indirectly, the operation of the Business or Seller’s ownership, control or use of any Excluded Assetsassets prior to the Closing, excluding only the Assumed Liabilities; (b) any all liabilities or and obligations of Seller in respect arising from the execution, delivery and performance of Indebtednessthis Agreement or from the consummation of the transactions contemplated hereby; (c) all Indebtedness of Seller; (d) all liabilities and obligations relating to any liabilities current or former employees, agents or independent contractors of Seller in each case arising out of, accruing, relating to or in connection with their employment or service with (or termination of employment or service from) Seller or its Affiliates, including obligations in (including damages and fees) with respect to any salary, wages, bonuses, commissions, workers’ compensation or other compensation, withholding Taxes of employees, termination and severance pay, retention payments, payments related to pension and pension funds, and all vacation and medical or other benefits; (e) all liabilities, obligations, claims, causes of action or Action, including any product liability and warranty claims or any claim for injury to any Person or property, arising out of any products (including the Products prior to the Closing) manufactured, sold, donated or otherwise disposed of, by or on behalf of Seller, or acts or omissions of Seller or events caused by Seller, including all liabilities, obligations, claims, legal proceedings or Action related to or arising out of (i) the return of Products sold by Seller provided such return occurs or is initiated prior to the Closing Date, (ii) coupon redemptions with respect to Products sold by Seller and (iii) post-Closing accruals or deductions taken by retailers, and any adjustments thereto, with respect to Products sold by Seller; (f) all Taxes for which Seller is liable pursuant to Section 6.12; (g) all Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes member of any Person under Treasury Regulation section 1.1502-6 (consolidated, affiliated, combined or similar provision unitary group of state, local, which Seller is or foreign law) as has been a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8member; (dh) all liabilities and obligations relating to any Excluded Asset; (i) all liabilities and obligations in respect of Seller any Company Plans or any other employee benefit or compensation plans, policies, programs, agreements or arrangements and all liabilities arising under Section 302 or Title IV of its Affiliates for wagesERISA, vacation paySection 412 of the Code, other paid time offPart 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code; (j) all expenses and service charges imposed by or incurred or payable with respect to services performed pursuant to an Assumed Contract prior to the Closing, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay except to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from it is an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesAssumed Liability; and (gk) any all liabilities or obligations obligations: (i) arising from or in connection with, any Action, any examination or request initiated by a Governmental Authority with respect to the Products or any violation or alleged violation of any Law or any other requirement of the FDA, FTC or any other Governmental Authority prior to the Closing; (ii) arising by reason of any breach or alleged breach by Seller of any Contract with respect to the events, acts, omissions or circumstances occurring or existing prior to Closing; and (iii) arising under from or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of overcharges to a Governmental Authority prior to the transactions contemplated hereby and therebyClosing.

Excluded Liabilities. Seller acknowledges that Except as expressly assumed pursuant to Section 1.3, the sole liabilities Buyer is not assuming and obligations being assumed shall not have any liability or obligation whatsoever for any Liabilities of the Company or any of its predecessors or Affiliates whatsoever, whether or not arising out of the ownership or operation of the Business or the Acquired Assets, all of which will be retained and satisfied when due by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Company (collectively, the “Excluded Liabilities”):). Without limiting the generality of the foregoing, the Buyer shall not assume or be deemed to assume any of the following Liabilities, all of which shall constitute Excluded Liabilities: (a) any liabilities Liabilities arising under or obligations of Seller relating to any written or oral Contract to which the Company or its assets or properties are otherwise subject or bound, other than Liabilities arising under the Assigned Contracts to the extent related to any Excluded Assetsprovided in Section 1.3(a); (b) any liabilities Liabilities of the Company or obligations any of Seller its predecessors or Affiliates in respect of any Indebtedness, trade payables, accrued expenses or Company Transaction Expenses, except to the extent provided in Section 1.3(b); (c) any liabilities or obligations in respect Liabilities of Taxes of Seller the Company or any Tax of its predecessors or Affiliates to any Affiliate or current or former member, option holder or holder of Seller, other equity interests of the Company or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (its predecessors or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Affiliates; (d) any obligations Liabilities of Seller the Company or any of its predecessors or Affiliates for wages, vacation pay, other paid time off, employment or in respect of Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, including any sales Taxes or retention Taxes resulting from or severance pay relating to the extent attributable to consummation of the period prior to the Effective Time or which transactions contemplated hereby (including any Taxes that may become payable due as a result of any bulk sales or similar tax that may be assessed against the Company following the Closing); (e) any Liabilities of the Company to any present or former manager, member, officer, employee, consultant or independent contractor of the Company or any of its predecessors or Affiliates, or any of their respective spouses, children, other dependents or beneficiaries, including any and all Liabilities arising under any federal, state, local or foreign Laws or Orders (including those relating to employee health and safety); (f) any Liabilities of the Company or any of its predecessors or Affiliates for any Actions against the Company or any of its predecessors or Affiliates, including any Actions pending or threatened against the Company or any of its predecessors or Affiliates as of the Closing Date; (g) any Liabilities of the Company or any of its predecessors or Affiliates arising out of or resulting from and violation of or non-compliance with any federal, state, local or foreign Laws or Orders; (h) any Liabilities of the Company or any of its predecessors or Affiliates arising out of, relating to or resulting from any obligation to indemnify any Person (other than pursuant to an Assigned Contract to the extent assumed pursuant to Section 1.3(a)); (i) any Liabilities of the Company arising under this Agreement or any of the Related Agreements; (j) any Liabilities resulting from or relating to products sold or services performed by the Company or any of its predecessors or Affiliates, including any warranty Liabilities; (k) any Liabilities relating to, based in whole or in substantial part on events or conditions occurring or existing in connection with, or arising out of, the shutdown prior to the Closing of any of the operations and facilities utilized by the Company in connection with the Business, including any action prior to the Closing that could be construed as a “plant closing” or “mass layoff,” as those terms are defined in WARN, or any “employment loss,” as defined in WARN, that any Company Employee may suffer or may be deemed to suffer prior to the Closing; (el) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller Liabilities of the Company or any of its predecessors or Affiliates based upon such Person’s acts or omissions occurring after the Closing; (m) any Liabilities arising under or with respect to any Employee Benefit Plan or any benefit, tax or compensation Liability of any ERISA Affiliate; (n) any Liabilities of the Company arising in connection with or in any way relating to any property now or previously owned, leased or operated by the Company, its predecessors or Affiliates, or any activities or operations occurring or conducted at any real property now or previously owned, operated or leased by the Company, its predecessors or Affiliates (including offsite disposal), including any Liabilities which arise under which Seller or relate to any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit PlanEnvironmental Laws; (fo) except for the Recoverable Liabilities, any liabilities or obligations arising from other Liabilities attributable in any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior manner to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesExcluded Assets; and (gp) any liabilities Liabilities set forth on Schedule 1.4(p) attached hereto. The disclosure of any obligation or obligations of Seller arising under or in connection with Liability on any schedule to this Agreement, any certificate Agreement shall not create an Assumed Liability or other document delivered in connection herewith, and any Liability of the transactions contemplated hereby and therebyBuyer, except where such disclosed obligation has been expressly assumed by the Buyer as an Assumed Liability in accordance with provisions of Section 1.3 hereof.

Excluded Liabilities. Seller acknowledges that Except as expressly set forth in Section 2.5 --------------------- hereof, the sole liabilities Buyer does not assume and shall not be deemed to have assumed or be responsible for any Liabilities of the Sellers. Without limiting the foregoing in any manner, the Assumed Liabilities do not include any of the following Liabilities and obligations being assumed by of the Sellers, and the Sellers will promptly pay and perform and hold the Buyer are the Assumed Obligations harmless from and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”):against: (aA) any liabilities Liability or obligations of Seller obligation relating to the extent related to any Excluded Assets; (bB) any liabilities Liability or obligations obligation of Seller the Sellers or any of their Affiliates in respect of Indebtednessany Taxes or any reporting requirement or estimated Tax payable with respect thereto relating to events or transactions occurring on or prior to the Closing Date, or any Liability for any property taxes for the tax year that includes the Closing Date, involving the Sellers or any of their Affiliates, the Business or the Acquired Assets, the transactions contemplated hereby, in whole or in part, or relating to the inclusion of any Affiliate of the Seller in a consolidated tax group or tax sharing arrangement with the Sellers or their Affiliates; (cC) any liabilities Liability, claim or obligations in respect obligation relating to any Legal Proceeding arising from or relating to the Business, the Acquired Assets, the Inventory or other events or conditions occurring or existing prior to or on the Closing Date (including any warranty claim); (D) any Liability to any Employee or independent contractor or subcontractor of Taxes of Seller the Sellers or any Tax Affiliate other Person for termination pay or pension or other obligation in connection with the transactions that are the subject of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract this Agreement or otherwise, except or for Taxes for which Buyer is expressly liable pursuant termination pay or pension or other obligations to Section 3.4 former Employees or Section 7.8; (d) any obligations independent contractors or subcontractors of Seller the Sellers or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, Person or retention or severance pay otherwise pertaining to the extent Acquired Assets and attributable to the period employment or services provided prior to the Effective Time or which may become payable as a result of the Closing; (eE) except as otherwise expressly provided in Section 7.10, any liabilities under Liability of Sellers for accounts payable due or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to owed by Seller the Sellers or any of its their respective Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (fF) except for any Liability relating to the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets Excluded Agreements or the Business filed or arising from an Actionable Incident occurring prior operations of the Sellers not strictly relating to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any operation of the transactions contemplated hereby and therebyBusiness.

Excluded Liabilities. Seller acknowledges that Buyer shall not assume or be obligated to pay, perform or otherwise discharge any liability or obligation of Seller, direct or indirect, known or unknown, absolute or contingent, other than the sole Assumed Liabilities, which are to be expressly assumed by Buyer pursuant to the Instrument of Assignment and Assumption (all such liabilities and obligations not being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectivelyherein, the “Excluded Liabilities”):) and, notwithstanding anything to the contrary in Section 2.3, none of the following shall be Assumed Liabilities for purposes of this Agreement: (a) any all liabilities or obligations in respect of Taxes for which Seller is liable pursuant to the extent related to any Excluded AssetsSection 8.3; (b) any payables and other liabilities or obligations of Seller with respect to the Business to any other business unit of Seller or any of Seller’s Affiliates (except to the extent individually identified and reflected as a current liability in respect the calculation of IndebtednessValuation Date Working Capital); (c) any costs and expenses incurred by Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein; (d) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Excluded Assets; (de) any liabilities in respect of lawsuits, claims, suits, proceedings or investigations, regardless of when made or asserted, relating to, resulting from or arising out of the operation of the Business during the period prior to the Closing (including any of the foregoing relating to the failure or the alleged failure by Seller to comply with applicable Requirements of Laws or perform its obligations or otherwise comply with the terms of any Seller Agreement); (f) all liabilities and obligations resulting from or arising out of the operation of the Business on or prior to the Closing (except to the extent individually identified and reflected as a dollar amount in Valuation Date Working Capital or constituting an Assumed Liability under Section 2.3(b)); (g) any liability under or with respect to any current or former compensation or employee benefit plan, policy, program, arrangement or agreement, including Seller Plans other than the Assumed Benefit Plans, or otherwise arising in connection with the employment or pay practices of Seller or any of its Affiliates for wagesAffiliates; (h) any liabilities or obligations relating to, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementin respect of, or retention that may become owed to, current or severance pay to former employees of the extent attributable Business, including accrued compensation and worker’s compensation claims, relating to the period prior to the Effective Time Closing, other than such liabilities or which may become payable as a result of obligations relating to the ClosingAssumed Benefit Plans; (ei) except as otherwise expressly provided in Section 7.10, any liabilities under or obligations relating to any Benefit Plan at any time maintained, contributed to current or required to be contributed to by former employees of the Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan;Affiliates who do not become Transferred Employees in accordance with Section 8.4; or (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (gj) any liabilities or obligations and all Indebtedness of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any Affiliate of the transactions contemplated hereby and therebySeller.

Excluded Liabilities. Notwithstanding any provision in this Agreement to the contrary, Buyer shall assume only the Assumed Liabilities and neither Buyer nor any of its Affiliates shall assume any other liability or obligation of the Seller acknowledges that the sole or any of its Affiliates of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of the Seller or its Affiliates (all such liabilities and obligations not being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, being herein referred to as the “Excluded Liabilities”):), and, notwithstanding anything to the contrary in Section 2.03, none of the following shall be Assumed Liabilities for the purposes of this Agreement: (a) any liabilities liability or obligations of Seller obligation under or with respect to any Assumed Contract, Permit, Governmental Order, or Real Property Lease required by the terms thereof to be discharged prior to the extent related to any Excluded AssetsEffective Time or as set forth on Schedule 2.04(a); (b) any liabilities liability or obligations obligation for which the Seller or any of Seller in respect its Affiliates has already received or will receive the partial or full benefit of Indebtednessthe Station Asset to which such liability or obligation relates, but only to the extent of such benefit received; (c) any liabilities or obligations in respect the liability related to the Indebtedness of Taxes of the Seller or any Tax Affiliate of Sellerits Affiliates, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateincluding, localwithout limitation, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8set forth on Schedule 2.04(c); (d) any obligations liability or obligation relating to or arising out of any of the Excluded Assets; (e) any liability with respect to Excluded Employees and Employees who are not Transferred Employees; (f) any Tax liability or obligation (i) relating to Pre-Closing Tax Periods (except as expressly provided for in Section 9.02), (ii) imposed on or payable by or with respect to Seller (except as expressly provided in Section 9.02), or (iii) for which Seller is otherwise liable pursuant to Section 9.05; (g) any liability to indemnify, reimburse or advance amounts to any officer, member, Employee or agent of the Seller or any of its Affiliates for wages, vacation payAffiliates, other paid time offthan any liability to any Transferred Employee incurred on or after the applicable Employment Commencement Date; (h) the liabilities and obligations arising or with respect to the operation of the Station, including the owning or holding of the Station Assets, prior to the Effective Time (excluding any liability or obligation expressly assumed by Buyer hereunder); (i) any liability or obligation for any severance, retention, performance or stay bonus or any other compensation payable in connection with the consummation of the transactions contemplated hereby (including any termination of employment Taxesin connection therewith) or otherwise due and payable prior to the Effective Time; (j) any Action, bonusesincluding any Action relating to any Employee, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable arising from or related to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (gk) any liabilities liability of the Seller under this Agreement or obligations of Seller arising under or any document executed in connection with this Agreementtherewith, any certificate or other document delivered in connection herewith, and any of including the transactions contemplated hereby and therebyAncillary Agreements.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s Affiliates withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ workers compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection in herewith, and any of the transactions contemplated hereby and thereby.

Excluded Liabilities. Seller acknowledges that The Company shall not assume or be obligated to pay, perform or otherwise discharge any liability or obligation of the sole ACS Contributing Group or the ACS Member, or the GCI Contributing Group or the GCI Member, whether direct or indirect, known or unknown, absolute or contingent, not expressly assumed by the Company pursuant to Section 2.5 (all such liabilities and obligations not being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, being herein called the “Excluded Liabilities”):) and, notwithstanding anything to the contrary in Section 2.5 or by operation of law or otherwise, none of the following shall be Assumed Liabilities for purposes of this Agreement: (a) Any liabilities in respect of Taxes for which the ACS Member, the GCI Member or any liabilities of their respective Affiliates is liable for periods ending as of the effectiveness of the transactions contemplated by Section 2.1, 2.2, or obligations of Seller 2.3 hereof or otherwise, except to the extent related provided in Section 6.3; (b) Any accounts payable owed by or to the ACS Member or the GCI Member (as applicable) or any of their respective Affiliates other than those accounts payable that are expressly assumed by the Company pursuant to Section 2.5; (c) Any other liabilities, obligations or commitments owed by or to the ACS Member or the GCI Member (as applicable) or any of their respective Affiliates other than those expressly assumed by the Company pursuant to Section 2.5; (d) Any costs and expenses incurred by the ACS Contributing Group or the ACS Member, or the GCI Contributing Group or the GCI Member, in connection with its negotiation and preparation of this Agreement, the Ancillary Agreements and the Pre-Closing Agreements and its performance and compliance with the agreements and conditions contained herein and therein; (e) Any liabilities, obligations or commitments in respect of any Excluded Assets; (bf) any liabilities Any liabilities, obligations or obligations of Seller commitments in respect of Indebtedness; (c) any liabilities Proceedings to which the ACS Contributing Group or obligations in respect of Taxes of Seller or any Tax Affiliate of Sellerthe ACS Member, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (the GCI Contributing Group or similar provision of statethe GCI Member, local, or foreign law) as is a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period party prior to the Effective Time or which may become payable as a result of the Closing; (eg) except as otherwise expressly provided Any liabilities, obligations or commitments in Section 7.10, any liabilities under respect of employees of the GCI Wireless Activities or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planthe ACS Wireless Activities; (fh) except for the Recoverable LiabilitiesAny liabilities, any liabilities obligations or obligations arising commitments resulting from any Claim Environmental Claims (including regardless of whether any workers’ compensation claimrepresentation or warranty contained in Section 4.8 is incorrect) involving related to the Purchased Assets ownership or the Business filed or arising from an Actionable Incident occurring operation of Real Property prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (gi) Any liabilities, obligations or commitments with respect to any liabilities universal service support received from the federal or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of Alaska Universal Service Funds received prior to the transactions contemplated hereby and therebyClosing.

Excluded Liabilities. Seller acknowledges Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligationsClosing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”): (a) any liabilities all costs and expenses incurred or obligations to be incurred by Sellers in connection with this Agreement and the consummation of Seller to the extent related to any Excluded AssetsTransactions; (b) all Liabilities (i) related to any liabilities current or obligations former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or of any Tax Subsidiary or Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or (ii) arising under, in connection with or in any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its AffiliatesAffiliates being deemed successor of the Business; (c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s any and all Employees, and contractors of Sellers or any of Seller’s Affiliate’s withdrawal their Subsidiaries or partial withdrawal from or termination Affiliates arising at any time before Closing; (d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any Benefit Planother Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2; (e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and (f) except for all Liabilities related to the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Acquired Assets or the Business filed or arising from an Actionable Incident occurring or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Effective Time, including any such Claims or Actionable Incidents disclosed Closing; provided that in the Seller Disclosure Schedules; and (g) event of any liabilities or obligations of Seller arising under or in connection with conflict between Section 2.2 and this AgreementSection 2.3, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebySection 2.3 will control.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Other than the Assumed Obligations Liabilities, all liabilities, liens and other obligations of Seller shall retain all other liabilities and obligations, including or any affiliates of Seller relating to the Business or the Purchased Assets arising prior to the Closing Date (collectively, the “Excluded Liabilities”): (a) ), shall remain the sole responsibility of and shall be retained, fully paid, fully performed and fully discharged solely by the Seller. Excluded Liabilities shall include, without limitation: any debts, liabilities or obligations of Seller to the extent related to any Excluded Assets; not specifically listed in Schedule 1.2(a) hereof, including (bi) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of the Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateincome, localtransfer, or foreign law) as a transferee or successorsales, by contract or otherwiseuse, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, and all other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations taxes arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any the consummation of the transactions contemplated hereby (including any income taxes arising because the Seller is transferring the Purchased Assets), whether imposed on Seller as a matter of law, under this Agreement or otherwise, (ii) any liability of the Seller for taxes, including taxes of any person other than the Seller, (iii) any liability of Seller with respect to any indebtedness for borrowed money, (iv) any liability of Seller arising out of any threatened or pending litigation or other claim, (v) any liability, whether arising by operation of law, contract, past custom or otherwise, for unemployment compensation benefits, pension benefits, salaries, wages, bonuses, incentive compensation, sick leave, severance or termination pay, vacation and therebyother forms of compensation or any other form of employee benefit plan (including the health benefits payable reflected on the Seller’s balance sheet), agreement (including employment agreements), arrangement or commitment payable to or for the benefit of any current or former officers, directors and other employees and independent contractors of Seller, (vi) any liabilities of any Seller to the Stockholders or any affiliates or current or former stockholders, members or other equity owners of any Seller, (vii) any liability for costs and expenses of the Seller in connection with this Agreement or any transactions contemplated hereby, (viii) any negative cash or book balances or any intercompany debt by and between, or by and among, Seller and any affiliate of Seller and (ix) any environmental liability. All Excluded Liabilities shall be the responsibility of Seller, and Seller and the Stockholder agree to indemnify and hold the Buyer harmless against any Excluded Liabilities, debts, obligations, claims or damages therefrom, costs and expenses.

Excluded Liabilities. Purchaser shall not assume or become liable for -------------------- any obligations, commitments, or liabilities of Seller, whether known or unknown, absolute, contingent, or otherwise, and whether or not related to the Acquired Assets, except for the Assumed Liabilities (the obligations and liabilities of Seller acknowledges that the sole liabilities and obligations being not assumed by Buyer Purchaser are hereinafter referred to as the Assumed Obligations "Excluded Liabilities"). Without limiting the generality of the preceding sentence, the Excluded Liabilities include all obligations and liabilities of Seller shall retain all other liabilities (i) not reflected in or reserved against in the Closing Balance Sheet, and obligations(ii) not specifically described in Section 2.1(b) and Section 2.1(c) hereof, including (collectivelywithout limitation, the “Excluded Liabilities”):following: (a) All liabilities arising out of any Company Benefit Plan (as defined in Section 5.19(a)) other than pursuant to the Employment Contract dated as of the 30th day of July, 1993 by and between Image and H. ▇▇▇▇ ▇▇▇▇▇▇▇, as amended (the "▇▇▇▇▇▇▇ Employment Contract"); (b) Any losses, costs, expenses, damages, claims, demands and judgments of every kind and nature (including the defenses thereof and reasonable attorneys' and other professional fees) related to, arising out of, or in connection with Seller's failure to comply with the Bulk Transfer Act or any similar statute as enacted in any jurisdiction, domestic or foreign, except such liability as arises as a result of Purchaser's failure to pay Assumed Liabilities; (c) Any liability or obligation arising or accruing under any Contract or Real Property Lease prior to the Effective Time, and any liability or obligation arising from or related to any breach or violation by Seller of or default by Seller under any provision of any Contract or Real Property Lease prior to the Effective Time; (d) Any liability of Seller with respect to any claim or cause of action, regardless of when made or asserted, which arises (i) out of or in connection with the operations of the Business by Seller prior to the Effective Time and which is not specifically listed or described in Section 2.1 hereof, or (ii) out of or in connection with the operations of the Business prior to the Effective Time under any federal, state, or local law, rule, or regulation relating to (A) environmental protection or clean-up, (B) taxation, or (C) employment or termination of employment; (e) Any liabilities or obligations of Seller relating to the extent related to any Excluded Assets; (bf) any Any liabilities or obligations of Seller in respect relating to sales and use, transfer, documentary, income or other taxes levied on the transfer of Indebtednessthe Acquired Assets; (cg) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of SellerExcept for the Assumed Employment Obligations, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 or obligation (or similar provision of stateincluding, localwithout limitation, or foreign law) as a transferee or successorsalaries, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wagesbonus, vacation pay, other paid time offsick pay, employment Taxesholiday pay, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period and other like obligations or payments), arising prior to the Effective Time or which may become payable as a result of the Closing, to any present or former employee, agent, or independent contractor of Seller, whether or not employed or retained by Purchaser after the Closing; (eh) except All Environmental Liabilities (as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planhereinafter defined); (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby.

Excluded Liabilities. Seller acknowledges that Buyer does not hereby assume, and shall not at any time hereafter (including on or after the sole liabilities and obligations being assumed by Buyer are Effective Time) become liable for, any of the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations Liabilities of Seller or any of its Affiliates for wagesor any ERISA Affiliate of any of the foregoing other than the Assumed Liabilities (the "Excluded Liabilities"). The Excluded Liabilities shall include, vacation paywithout limitation, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementthe following Liabilities: (a) any Liability of any of Seller or any of its Affiliates or any ERISA Affiliate of any of the foregoing whether currently in existence or arising hereafter that is not attributable to, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result that does not arise out of the Closingconduct of, the Business; (eb) except as otherwise expressly provided any Liability whether presently in Section 7.10, any liabilities under existence or arising hereafter relating to an Excluded Asset; (c) any Benefit Plan at Seller Environmental Liability; (d) any time maintainedLiability whether currently in existence or arising hereafter relating to fees, contributed commissions or expenses owed to any broker, finder, investment banker, attorney or required to be contributed to other intermediary or advisor employed by Seller or any of its Affiliates, Affiliates or under their respective ERISA Affiliates in connection with the transactions contemplated hereby or otherwise; (e) any Liability the existence of which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination constitutes a breach of any Benefit Planrepresentation or warranty hereunder; (f) any Seller Contingent Liabilities except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior Liabilities that Buyer has expressly agreed to assume pursuant to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andterms of this Agreement; (g) any liabilities Liability related to indebtedness of Seller for borrowed money or obligations capitalized leases, or the guarantee by Seller of the indebtedness of any other Person, except as set forth on Schedule 2.4(g); (h) any Liability of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby.; (i) Excluded Product Warranty Claims;

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligationsnot assume, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) whether as a transferee or successor, by contract or otherwise, except for Taxes for which and shall not be liable or responsible for, any Liability or Encumbrance of Seller of any kind whatsoever, whether known or unknown, liquidated or contingent, presently in existence or arising or asserted hereafter (collectively, the “Excluded Liabilities”). Without limiting the foregoing, Seller shall retain and be responsible for, and Buyer is expressly liable pursuant shall not be obligated to Section 3.4 assume, and does not assume, any Liability at any time arising from or Section 7.8attributable to: (a) Any breaches of any Seller Contract prior to or after the Closing Date or any payments or amounts due under any Seller Contract prior to or after the Closing Date, including, without limitation, the Liabilities set forth on Schedule 2.3 (a); (db) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent Any Taxes attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; imposed upon (ei) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which the Business or (ii) the Purchased Assets for the Pre-Closing Period; (c) Any loans, other indebtedness, or accounts payable (including any such Liabilities owed to Affiliates of Seller), including, without limitation, the Liabilities listed on the Seller Debt Schedule; (d) Any legal or equitable action or judicial or administrative proceeding initiated at any time, to the extent related to any action or omission on or prior to the Closing Date, including, without limitation, any Liability for (i) infringement or misappropriation of Intellectual Property, including, without limitation, the Liabilities set forth on Schedule 2.3 (d); (ii) breach of product warranties; (iii) injury, death, property damage or losses caused by Seller Products or the manufacture or design thereof; or (iv) violations of any privacy laws or any Affiliate has other Legal Requirements; (e) Any expenses and fees incurred by Seller incidental to the preparation of the Transaction Documents, preparation or may incur liabilitydelivery of materials or information requested by Buyer, or any contributionsand the consummation of the Transaction, benefits or liabilities thereforincluding all broker, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan;counsel and accounting fees; or (f) except for the Recoverable LiabilitiesAny Legal Requirement applicable to Seller, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed Assumed Liabilities on or arising from an Actionable Incident occurring prior to the Effective Time, including Closing Date or any Liability for a violation of such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebya Legal Requirement.

Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, Purchaser shall not assume or be liable for any of the following obligations or liabilities of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including its Subsidiaries (collectively, the “"Excluded Liabilities”):"), and Seller and its Subsidiaries shall retain, and shall continue to be responsible after the Closing Date for, and shall forever indemnify and defend Purchaser and its Affiliates and hold them harmless from and against all of the Excluded Liabilities: (a) any liabilities or obligations and all inter- and intra-company payables (except for such payables set forth in Section 1.1(f) of the Seller to the extent related to any Excluded AssetsDisclosure Letter); (b) any liabilities or obligations of Seller in respect of Indebtednessthe 100 Oaks Liability; (c) any liabilities or obligations in respect of and all Liabilities for (x) Taxes of Seller or any Tax Affiliate thereof or (y) Taxes that are imposed by any taxing authority with respect to taxable periods ending on or prior to the Closing Date that result from, arise out of Selleror relate to the Portfolio, or any liability in all cases except as otherwise provided in Section 1.9 (in respect of Seller certain prorated items for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 the calendar year in which the Closing occurs as provided therein) and Section 4.7 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Transfer and Gains Taxes); (d) subject to Sections 3.1(d) and 4.12, any and all Employee Liabilities; (e) any and all obligations or other Liabilities to the extent resulting from, arising out of, or relating to the Tax Protection Agreement (as defined in the Merger Agreement) and any obligation of Seller or any of its Affiliates to indemnify any Person for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) any and all obligations and other Liabilities arising out of or in connection with any negligent action or negligent omission that results in a breach of any of Seller's covenants or agreements set forth in either (i) clause (1) of Section 3.1(a) or (ii) Section 3.1(b) (except for during the Recoverable Liabilitiestime when Purchaser is managing, any liabilities pursuant to Section 3.1(d), the relevant Portfolio Property and such action or obligations arising from any Claim (including any workers’ compensation claim) involving omission was among the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior responsibilities of Purchaser pursuant to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andManagement Agreement); (g) any liabilities or and all obligations and other Liabilities arising out of Seller arising under or in connection with this AgreementSeller's violation of Section 3.1(a) or Section 3.1(b) to the extent that such violation results from Seller's or any of its Subsidiaries' (x) failure to pay Taxes, any certificate debts or other document delivered in connection herewithobligations when due, (y) incurrence of new indebtedness with respect to any Portfolio Property or (z) sales or other dispositions or transfers of any Portfolio Property; (h) all items of income and expense that are assumed by Seller pursuant to Section 1.9; and (i) any other Liabilities that do not result from, arise out of or relate to the transactions contemplated hereby and therebyPortfolio except as otherwise specifically provided herein.

Excluded Liabilities. Buyer shall have no responsibility for any agreements, liabilities or obligations of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer of any nature whatsoever which are not specifically included in the Assumed Obligations and Seller shall retain all other liabilities and obligationsLiabilities, including without limitation all of the following (collectively, the “Excluded Liabilities”): (a) Liabilities arising under any liabilities promissory note or agreements governing or securing indebtedness for borrowed money, interest bearing obligations owed to third parties or the deferred purchase price of Seller to the extent related to any Excluded Assetsproperty; (b) any liabilities or obligations Liability of Seller in respect or any of Indebtednessits affiliates for Taxes relating to the operation of the Business, or the ownership of the Acquired Assets, prior to the Closing; (c) any liabilities obligation to defend or obligations in respect indemnify any person by reason of Taxes of Seller the fact that such person was a director, officer, employee, or any Tax Affiliate agent of Seller, or any liability of its affiliates, or was serving at the request of Seller for unpaid Taxes or any of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateits affiliates, localas a partner, member, trustee, director, officer, employee, or foreign agent of another entity, and whether such obligation is pursuant to any statute, charter document, by-law) as a transferee or successor, by contract agreement, or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations obligation to pay compensation to any current or former director, officer or employee of Seller or any of its Affiliates affiliates, for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period services prior to the Effective Time or which may become payable as a result of the ClosingClosing Date; (e) except as otherwise expressly provided in Section 7.10Liabilities related to or arising out of Seller’s employee insurance or other benefits, any liabilities under other Liabilities to employees or relating former employees of Seller or any of its affiliates, for services prior to the Closing Date; (f) Liabilities resulting from any Benefit Plan at violation by Seller, or any time maintainedemployee, contributed director or agent of Seller, or any of its affiliates, or any predecessor for which Seller or any of its affiliates may be liable, of any Applicable Law, including, without limitation, those applicable to discrimination in employment, employment practices, wage and hour, retirement, labor relations, occupational safety, health, trade practices, environmental matters, competition, pricing and product advertising, in each case existing or required occurring prior to be contributed the Closing Date; (g) Liabilities resulting from workers’ compensation claims or audits arising out of events occurring prior to the Closing Date; and (h) Liabilities incurred by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising affiliates under or in connection with this Agreement, any certificate Agreement or other document delivered in connection herewith, and any of the Ancillary Agreements or the transactions contemplated hereby provided for herein or therein, including without limitation all fees and therebyexpenses of legal counsel, accountants, experts, or any investment banker, business broker, finder, or other advisor retained by Seller or any of its affiliates. BUYER AGREES THAT IT IS PURCHASING THE ACQUIRED ASSETS, AND ASSUMING THE ASSUMED LIABILITIES, ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, AND THAT EXCEPT FOR THE SPECIFIC EXPRESS REPRESENTATIONS AND WARRANTIES BY SELLER IN ARTICLE 4, THERE ARE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES BY SELLER OR ANY OTHER PARTY REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, PHYSICAL QUANTITIES OF INVENTORY, VALUE OF INVENTORY, FUTURE FINANCIAL RESULTS OR OTHERWISE.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations and Seller Liabilities, neither Buyer nor any of its Affiliates shall retain all assume or otherwise be liable in respect of, or be deemed to have assumed or otherwise be liable in respect of, any debt, claim, obligation, or other liabilities and obligationsLiability of Seller, including or any of its Affiliates, regardless of whether such debt, claim, obligation, or other Liability is matured or unmatured, contingent or fixed, known or unknown (collectively, the “Excluded Liabilities”):). Excluded Liabilities shall include, without limitation: (ai) any liabilities long-term debt or obligations notes payable of Seller and any Liability of Seller to the extent related to any Excluded Assetsof its Affiliates; (bii) any liabilities or obligations Liability for Taxes of Seller in respect (including liability for Taxes arising from any Tax sharing agreement, Tax indemnity agreement or Tax allocation agreement) for any Taxable Period, any liability for Taxes of Indebtednessthe Business or related to the Assets properly attributable to the portion of the Taxable Period that includes the Effective Date through and including the Effective Date, and any Tax Liability arising from the sale of the Business and the Assets to Buyer contemplated herein or from any liquidation and dissolution of Seller; (ciii) any liabilities Liability of or obligations in respect claim against Seller that constitutes or arises from a breach by Seller of Taxes any representation, warranty or covenant herein; (iv) any Liability of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes claim of any Person kind that may arise from Seller’s operation of the Business, ownership of the Assets or under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay the Assumed Contracts relating to the extent attributable to the time period prior to the Effective Time Date or arising out of events occurring prior to the Effective Date (including liabilities for breach by Seller prior to Closing) or resulting from Seller’s consummation of the transactions contemplated by this Agreement; (v) any Liability of or claim against Seller that may arise from the rendering of investment banking, brokerage fees, professional, legal, accounting, appraisal, engineering or other similar services to Seller in connection with the transactions herein; (vi) any Liability of Seller arising out of or relating to the employment of, performance of services by or termination of any employees, whether written or oral, express or implied, including any Liability (A) consisting of, arising out of or relating to severance, accrued vacation, termination, retention bonus, “golden parachute”, any Benefit Plan or corporate policy, unemployment compensation or any similar or other payment, with respect to any employee of Seller; (B) resulting from the consummation of the transactions contemplated by this Agreement or the termination of any employees in connection therewith under the Workers Adjustment and Retraining Notification Act of 1988, as amended from time to time; (C) resulting from workers’ compensation or other similar claims, or (D) arising out of or relating to any Benefit Plan; (vii) any and all claims of employees, consultants or independent contractors of Seller in such capacity; (viii) any Liability under any Contract not included in the Assumed Contracts; (ix) any Liability under any Assumed Contract for which may become payable a Consent, if required, has not been obtained or waived as a result of the Closing; (ex) except as any forfeiture, claim or pending litigation, arbitration or proceeding relating to the Business arising prior to the Effective Date (which shall remain and be the obligation and liability solely of Seller); (xi) any Liability, other than the Assumed Liabilities; and (xii) any liability related to any Excluded Asset, unless otherwise expressly provided in Section 7.10assumed by Buyer herein. For the avoidance of doubt, Seller shall not retain and Buyer is assuming and will pay the Assumed Current Liabilities. Seller agrees that it shall pay promptly when due any liabilities under and all Excluded Liabilities not discharged by it at or relating prior to any Benefit Plan at any time maintainedClosing, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or including any of Seller’s AffiliateLiabilities related to Seller’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for employees during the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets period they are employed by Seller or the Business filed or arising from an Actionable Incident occurring prior Benefit Plans. Buyer is not the successor employer of Seller’s employees for any purpose and is not required to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and employ any of the transactions contemplated hereby and therebysuch employees.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Other than the Assumed Obligations Liabilities, all liabilities, liens and other obligations of Seller shall retain all other liabilities and obligations, including or any affiliates of Seller relating to the Business or the Purchased Assets arising prior to the Closing Date (collectively, the “Excluded Liabilities”): (a) ), shall remain the sole responsibility of and shall be retained, fully paid, fully performed and fully discharged solely by the Seller. Excluded Liabilities shall include, without limitation: any debts, liabilities or obligations of Seller to the extent related to any Excluded Assets; not specifically listed in Schedule 1.2(a) hereof, including (bi) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of the Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateincome, localtransfer, or foreign law) as a transferee or successorsales, by contract or otherwiseuse, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, and all other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations taxes arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any the consummation of the transactions contemplated hereby (including any income taxes arising because the Seller is transferring the Purchased Assets), whether imposed on Seller as a matter of law, under this Agreement or otherwise, (ii) any liability of the Seller for taxes, including taxes of any person other than the Seller, (iii) any liability of Seller with respect to any indebtedness for borrowed money or credit card payables, (iv) any liability of Seller arising out of any threatened or pending litigation or other claim, (v) any liability, whether arising by operation of law, contract, past custom or otherwise, for unemployment compensation benefits, pension benefits, salaries, wages, bonuses, incentive compensation, sick leave, severance or termination pay, vacation and therebyother forms of compensation or any other form of employee benefit plan (including the health benefits payable reflected on the Seller’s balance sheet), agreement (including employment agreements), arrangement or commitment payable to or for the benefit of any current or former officers, directors and other employees and independent contractors of Seller, (vii) any liabilities of Seller to the Stockholder or any affiliates or current or former stockholders, or other equity owners of Seller, (vii) any liability for costs and expenses of the Seller in connection with this Agreement or any transactions contemplated hereby, (viii) any negative cash or book balances or any intercompany debt by and between, or by and among, Seller and any affiliate of Seller and (ix) any environmental liability arising out of or relating to the operation of the Business or Seller’s leasing, ownership or operation of real property. All Excluded Liabilities shall be the responsibility of Seller, and Seller and the Stockholder agree to indemnify and hold the Buyer harmless against any Excluded Liabilities, debts, obligations, claims or damages therefrom, costs and expenses.

Excluded Liabilities. Notwithstanding the provisions of Section or any other provision hereof or any schedule or exhibit hereto, and regardless of any disclosure to Buyer, Buyer shall not assume any Liabilities of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are other than the Assumed Obligations and Liabilities. The Liabilities retained by Seller shall retain all other liabilities and obligations, including (collectively, the “"Excluded Liabilities”):") shall include, without limitation: 3.2.1 Except as otherwise provided in Section , Seller's Liabilities for any claims (awhenever made) arising out of, relating to, resulting from or caused by any liabilities transaction, status, event, condition, occurrence or obligations situation existing, arising or occurring (i) in connection with the ownership or operation of Seller to the extent related to any Excluded Assets; (b) any liabilities Business or obligations of Seller in respect of Indebtedness; (c) any liabilities the Seller's assets on or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable (ii) in connection with Seller's or its Affiliates' businesses or activities at any time prior to or on the Effective Time; 3.2.2 Liabilities with respect to all Taxes of Seller relating to the ownership or operation of the Business or the Purchased Assets on or prior to the Effective Time (including, without limitation, any payroll taxes and any other operating business taxes) and all Taxes of Seller arising out of or relating to any of the transactions contemplated hereby; 3.2.3 any and all Liabilities with respect to any current or former employee, independent contractor, or consultant employed or engaged in the operation of the Business or the beneficiaries or dependents of any such Person (collectively, "Employees") or Employee Plan, including, without limitation, any and all Liabilities relating to or arising in connection with or as a result of (i) the Closingemployment or the actual or constructive termination of employment of any Employee by Seller (including, without limitation, any termination of employment in connection with the consummation of the transactions contemplated by this Agreement), (ii) the participation in or accrual of benefits or compensation under, or the failure to participate in or to accrue compensation or benefits under, any Employee Plan or other or arrangement of Seller, (iii) accrued but unpaid salaries, wages, bonuses, incentive compensation, vacation or sick pay or other compensation or payroll items (including, without limitation, deferred compensation), (iv) any and all retention, change in control or other similar compensation or benefits which are or may become payable in connection with the consummation of the transactions contemplated by this Agreement, or (v) contributions, premiums, duties and liabilities relating to any Employee Plan; 3.2.4 Liabilities of Seller for costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated hereby; 3.2.5 any Liability of Seller to indemnify any person by reason of the fact that such person was a director, officer, employee or agent of Seller or an Affiliate of Seller or was serving at the request of a Seller as a partner, trustee, director, officer, employee or agent of another person (e) except as whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise expressly provided in Section 7.10and whether such indemnification is pursuant to statute, any liabilities charter document, bylaw, agreement or otherwise); 3.2.6 Liabilities of Seller under or pursuant to the Transaction Documents; 3.2.7 Liabilities arising out of or relating to the Excluded Assets; 3.2.8 any Benefit Plan at claim for payment of fees and/or expenses as a broker or finder in connection with the origin, negotiation or execution of this Assignment or the consummation of the transactions contemplated hereby based upon any time maintainedalleged agreement, contributed to arrangement or required to be contributed to by understanding between the claimant and Seller or any of its Affiliates, agents or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedulesrepresentatives; and (g) 3.2.9 any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyLiabilities not specifically assumed by Buyer hereunder.

Excluded Liabilities. Seller acknowledges that Notwithstanding any other provisions of this Agreement and the sole liabilities and obligations being assumed by Buyer are Ancillary Agreements, except for the Assumed Obligations and Liabilities expressly specified in Section 2.3, Buyer shall not assume, or otherwise be responsible for, any Liabilities of Seller shall retain all other liabilities and obligationsor its affiliates, including whether liquidated or unliquidated, or known or unknown, whether arising out of occurrences prior to, at or after the date hereof (collectively, the “Excluded Liabilities”):), which Excluded Liabilities include, without limitation: (a) except as specifically provided in Section 5.5, any liabilities Liability to or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities employees or obligations in respect of Taxes former employees of Seller or any Tax Affiliate of Sellerits affiliates, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 including, (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (di) any obligations claim or demand of Seller a current or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, former employee relating to or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable arising as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10employment, termination thereof, or an employment agreement, whether or not written, between Seller or its affiliates and any liabilities under or relating Person, including, for this purpose, with respect to any Person claiming entitlements or benefits on the basis of a claimed employer-employee relationship between Seller and such Person, (ii) any Liability under any Benefit Plan Arrangement at any time maintained, contributed to or required to be contributed to by or with respect to Seller or any of its Affiliates, affiliates or under which Seller or any Affiliate has or its affiliates may incur liabilityLiability, or any contributions, benefits or liabilities Liabilities therefor, or any liability Liabilities with respect to Seller’s or any of Seller’s Affiliate’s its affiliates’ withdrawal or partial withdrawal from or termination of any Benefit PlanArrangement, (iii) any Liability under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), (iv) any Liability of Seller or its affiliates under the WARN Act, and any similar state, local U.S. or non-U.S. law or regulation, (v) except as set forth in Section 2.3, any Liability of Seller or its affiliates for payroll obligations and/or severance and/or paid time and/or mandatory or customary payment and/or expense accounts and/or benefit and/or entitlement for employees of Seller or its affiliates, and (vi) any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker’s compensation law or regulation or under any federal, state or non-U.S. employment discrimination law or regulation, which shall have been asserted on or prior to the Closing Date or is based on acts or omissions which occurred on or prior to the Closing Date; (b) any Liability for Taxes of Seller (including Seller’s Liability for Taxes of another Person under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or foreign tax law), other than Transfer Taxes and Property Taxes that are specifically allocated to Buyer pursuant to Section 2.10 and Section 5.7(b); (c) any Liability of Seller arising out of or related to any Action asserted on or prior to the Closing Date against Seller, or against or in respect of any Asset, or the basis of which shall have arisen on or prior to the Closing Date; (d) any Liability of any Subsidiary owed to Seller; (e) any Liability of Seller arising out of or relating to the ownership, operation or possession of the Assets prior to Closing, including without limitation any claims, obligations, rebates or litigation arising out of or relating to events or conditions occurring prior to Closing or Products sold by Seller prior to Closing; (f) except for the Recoverable Liabilities, any liabilities Liability of Seller that arises out of or obligations arising from relates to any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andExcluded Asset; (g) any liabilities Liability to the extent arising from or obligations as a result of the conduct of the Retained Business by Seller or any of its Subsidiaries or affiliates; (h) any Indebtedness of Seller, or any of its Subsidiaries and affiliates; and (i) any Liabilities of Seller arising under or in connection with this Agreement, respect to any certificate or Contract of Seller other document delivered in connection herewith, and any of the transactions contemplated hereby and therebythan an Assumed Contracts.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations Liabilities, Buyer shall not assume and Seller under no circumstances shall retain all Buyer be obligated to pay or assume, and neither the Assets nor any other liabilities and obligationsassets of Buyer shall be or become liable for or subject to any liability, including indebtedness, commitment, or obligation of Sellers, whether known or unknown, fixed or contingent, recorded or unrecorded, currently existing or hereafter arising or otherwise (collectively, the “Excluded Liabilities”):), including, without limitation, the following Excluded Liabilities: (a) any liabilities debt, obligation, expense or obligations liability of Seller Sellers that is not an Assumed Liability; (b) claims or potential claims for medical malpractice or general liability arising from events that occurred prior to the extent related to Effective Time; (c) those claims and obligations (if any) specified in Schedule 1.4 hereto; (d) any liabilities associated with or arising out of any of the Excluded Assets; (be) any liabilities or obligations of Seller Sellers in respect of Indebtednessperiods prior to the Effective Time arising under the terms of the Medicare, Medicaid, TriCare/CHAMPUS, Blue Cross, or other third party payor programs, and any liability arising pursuant to the Medicare, Medicaid, TriCare/CHAMPUS, Blue Cross, or any other third party payor programs as a result of the consummation of any of the transactions contemplated under this Agreement; (cf) any liabilities liability or obligations in respect obligation of Sellers for Taxes, including, without limitation, (i) any Taxes arising as a result of Seller Sellers’ operation of the Hospital or ownership of the Assets prior to the Effective Time, (ii) any Tax Affiliate property Taxes which are the obligation of SellerSellers pursuant to Section 1.9, or and (iii) any liability of Seller Sellers for the unpaid Taxes of any Person individual, entity or other party under Treasury Regulation section Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law) ), as a transferee or successor, by contract contract, or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (dg) liability for any obligations and all claims by or on behalf of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay Sellers’ employees relating to the extent attributable to the period periods prior to the Effective Time including, without limitation, liability for any severance payments, pension, profit sharing, deferred compensation, or which may become payable as a result of the Closingany other employee health and welfare benefit plans, liability for any EEOC claim, ADA claim, FMLA claim, wage and hour claim, unemployment compensation claim, or workers’ compensation claim (provided, however, that this clause (g) shall not apply to any and all employee benefits constituting Assumed Liabilities); (eh) except as otherwise expressly provided in Section 7.10any obligation or liability accruing, any liabilities under arising out of, or relating to any Benefit Plan at any time maintainedfederal, contributed to state or required to be contributed to by Seller local investigations of, or claims or actions against, Sellers or any of its Affiliates, or under which Seller their Affiliates or any Affiliate has of their employees, medical staff, agents, vendors or may incur liability, or any contributions, benefits or liabilities therefor, or any liability representatives with respect to Seller’s acts or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring omissions prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and; (gi) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of Seller, their Affiliates or their directors, officers, employees and agents claimed to violate any constitutional provision, statute, ordinance or other law, rule, regulation, interpretation or order of any Governmental Entity (as defined in Section 3.8); (j) liabilities or obligations arising as a result of any breach by Sellers at any time of any contract or commitment that is not assumed by Buyer; (k) liabilities or obligations arising out of any breach by Sellers prior to the Effective Time of any Contract; (l) any recoupment with respect to periods prior to Closing in connection with audits performed by Zone Program Integrity Contractors, Medicare Recovery Audit Contractors, or other contractors or auditors pursuant to authority delegated by The Centers for Medicare and Medicaid Services (“CMS”), the OIG, or state agencies; (m) any liabilities or obligations relating to information requests, proceedings, subpoenas or production requests brought or made by third parties with respect to the compliance prior to Closing of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated Assets (to the extent such Assets are not modified, altered or reconstructed after the Closing) with the requirements of the Americans with Disabilities Act, as amended, and Section 504 of the Rehabilitation Act of 1973; (n) any liabilities or obligations relating to or arising from any Environmental Condition relating to any of the Assets occurring or in existence prior to the Closing or any noncompliance by Sellers, or any Affiliate of Sellers, with respect to any Environmental Law; and (o) any debt, obligation, expense, or liability of Sellers arising out of or incurred solely as a result of any transaction of Sellers occurring after the Effective Time or for any violation by Sellers of any law, regulation, or ordinance at any time. Sellers hereby acknowledge and therebyagree that they are retaining, and are liable for, the Excluded Liabilities, and shall pay, discharge and perform all such Excluded Liabilities promptly when due.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by The Buyer are is not assuming or agreeing to pay or discharge any Liabilities other than the Assumed Obligations Liabilities and all such other Liabilities of Seller shall retain all other liabilities and obligationsits Affiliates, including (collectively, the following shall be referred to as “Excluded Liabilities”):: (a) any Liabilities in respect of Taxes for which Seller or its Affiliates is liable pursuant to Section 5.07; (b) any payables and other liabilities or obligations of Seller or its Affiliates with respect to the extent related Acquired Stores owed to any other business unit of Seller or any of Seller’s Affiliates; (c) any Company Expenses; (d) any indebtedness of Seller or its Affiliates; (e) any Liabilities in respect of any Excluded Assets; (bf) except as may be otherwise specifically provided in Section 6.01, all Liabilities arising out of or relating to employee benefits, deferred compensation, pension or retirement plans, or other programs, policies, procedures or other arrangements of any liabilities type or obligations description, including for this purpose any benefits provided or available to former employees, dependents of Seller in respect of Indebtedness; employees or former employees, independent contractors or any other person, which are maintained or contributed to (cor formerly maintained or contributed to) any liabilities or obligations in respect of Taxes of by Seller or any Tax Affiliate or former Affiliate of Seller, or to which Seller or its Affiliates or former Affiliates has or formerly had any liability obligation to contribute or provide benefits, however maintained, funded or sponsored, whether or not legally binding or subject to ERISA, whether providing individual or a group coverage, and whether written or unwritten, funded or unfunded, insured or self-insured, including: (i) all Liabilities arising under the Benefits Arrangements (other than any Multiemployer Plan), (ii) all Liabilities under Title IV of ERISA (other than any Liability with respect to a Multiemployer Plan), (iii) all Liabilities with respect to compensation, bonuses and commissions owed to any current or former Business Employees that are payable with respect to services performed by such individuals prior to their termination of employment or service with Seller for unpaid Taxes or Seller’s Affiliates, (iv) all Liabilities arising out of or relating to any Person under Treasury Regulation section 1.1502-6 claims by any current or former Business Employees with respect to any personal injuries, including workers’ compensation or disability, allegedly arising during their employment or engagement by Seller or Seller’s Affiliates, regardless of when any such claim is made or asserted, (v) all Liabilities arising from the Seller's breach of its CBAs applicable to employees of the Acquired Stores and the Distribution Center, (vi) any Liabilities arising out of or similar provision relating to any pension plan other than a Multiemployer Plan, including but not limited to the Rite Aid of stateNew York Pension Plan and the Rite Aid Defined Benefit Pension Plan, local(vii) any Liabilities relating to personal holidays or other vacation leave accrued by employees of the Acquired Stores and the Distribution Center prior to the applicable Employment Start Date, or foreign lawand (viii) as a transferee or successor, by contract or otherwise, except for Taxes all other Liabilities for which Buyer Seller is expressly liable responsible pursuant to Section 3.4 or Section 7.86.01; (dg) any Liabilities or obligations in connection with any Business Employees who are not Transferred Employees (including any liabilities arising under the WARN Act and any similar state or local law, provided Buyer has offered employment to such Business Employees in accordance with Section 6.01); (h) except as otherwise specifically provided in Section 6.01(a) or (b), any Liabilities (i) in connection with the Transferred Employees to the extent arising before, and relating to any period of employment with Seller at any time on or prior to, the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date) or (ii) related to current or former employees of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Scheduleswho are not Transferred Employees; and (gi) any liabilities Liabilities arising out of (i) any Action related to or obligations arising out of Seller arising under any occurrence or in connection with this Agreementevent happening prior to the Closing (or each Subsequent Closing Date or Distribution Center Closing Date, as applicable), (ii) any certificate or other document delivered in connection herewith, and any matter disclosed on Schedule 3.06 of the transactions contemplated hereby and therebyDisclosure Schedules or (iii) any matter disclosed on Schedule 3.14 of the Disclosure Schedules.

Excluded Liabilities. Buyer will not assume or be liable for any Liabilities of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are or any of its Affiliates other than the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Liabilities (collectively, the “Excluded Liabilities”): ). Without limiting the generality of the foregoing, Buyer will not assume or be liable for any of the following Liabilities, which shall constitute “Excluded Liabilities” hereunder: (a) the Account Liabilities; (b) Excluded Taxes; (c) Liabilities arising under any liabilities or obligations Contracts of Seller or its Affiliates, whether relating to the Accounts or otherwise, whenever incurred or accrued; (d) Liabilities of whatever kind and nature assessed in any Proceeding to the extent related relating to the Accounts or the Account Assets prior to the Transactions, including the Custodial Transfer; (e) Liabilities relating to any Excluded Assets; breach or alleged breach of the Account Agreements in connection with the Transactions (bincluding, for the avoidance of doubt, the Custodial Transfer); (f) Liabilities relating to any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes Employees of Seller or its Affiliates, including, without limitation, any Tax Affiliate of Seller, or Liabilities associated with any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates claims for wages, vacation pay, salary or other paid time off, employment Taxesbenefits, bonuses, other incentive commissions, overtime pay, accrued vacation or holiday pay, workers’ compensation, commissionsseverance, expense reimbursementretention, termination or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedulesother payments; and (g) any liabilities or obligations of Seller Liabilities arising under or in connection with this Agreementany Benefit Plan, including any certificate Controlled Group Liability of Seller or other document delivered any ERISA Affiliate; (h) fifty percent (50%) of any Liabilities for Transfer Taxes in connection herewith, with this Agreement and the Transactions; (i) any Liability relating to the CDB Account Engagements arising on or prior to the Plan Year End applicable to such CDB Accounts; (j) any Liability for which Buyer has a right to indemnification pursuant to Section 8.2; and (k) all Liabilities relating to or arising out of the transactions contemplated hereby and therebyExcluded Assets.

Excluded Liabilities. Seller acknowledges that Notwithstanding Section 1.3 hereof, at the sole Closing, the Buyer shall not be assuming the following liabilities and obligations being assumed by Buyer are of the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, Company relating to the “Excluded Liabilities”):Business: (a) any liabilities or obligations of Seller to the extent related to any Excluded AssetsAll intercompany accounts payables; (b) any All liabilities or obligations of Seller in respect of Indebtednessany action, claim, suit, litigation, proceeding, labor dispute, arbitral action, governmental audit, inquiry, criminal prosecution, investigation or unfair labor practice charge or complaint ("Action") that: (i) were served on the Company on or before the Closing Date; or (ii) arise out of the conduct of the Business on or prior to the Closing Date regardless of when served except to the extent that such Actions referred to in this clause (ii) relate to Assumed Liabilities; (c) any All liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant and relating to Section 3.4 or Section 7.8Indebtedness; (d) All liabilities under any Benefit Plans; (e) All liabilities with respect to former employees of the Business; (f) All liabilities and obligations of Seller the Company or the Parent or any affiliate of its Affiliates either thereof for wages, vacation pay, other paid time off, employment Taxes, bonusesincluding without limitation, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable (i) any of such Taxes arising as a result of the Company's operation of the Business or ownership of the Assets on or before the Closing, (ii) any liability for Taxes pursuant to a tax sharing agreement or tax indemnity or by virtue of the Company or the Parent being a transferee or a successor, (iii) any Tax liability resulting from the Company or the Parent being liable for the Taxes of any consolidated, combined or unitary or similar group pursuant to Treasury Regulations Section 1-1502-6 or any analogous state or local tax provision and (iv) except as provided in Section 9.2(a), any Transfer Taxes; (eg) except as otherwise expressly provided in Section 7.10All liabilities and obligations of the Parent or any affiliate of the Parent of any nature, whether absolute, accrued, contingent, determined, determinable or otherwise, including without limitation, any indemnification liability or obligation of the Parent or an affiliate of the Parent, for which the Company is or may become liable, and all withdrawal liabilities under relating to multiemployer pension plans of the Parent; (h) All liabilities and obligations of the Company to third parties in respect of tort claims involving the Business (whether personal injury, bodily harm or property damage) that arise from products of the Business sold on or before the Closing Date; (i) All liabilities and obligations of the Parent or the Company for any medical reimbursements to the employees of the Company relating to medical expenditures incurred by the employees of the Company on or prior to the Closing Date; (j) All liabilities and obligations of the Company or the Parent arising out of or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller Environmental Condition or any of its Affiliates, or under which Seller or noncompliance with any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit PlanEnvironmental Law; (fk) except for All liabilities and obligations of the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets Company or the Business filed Parent under any of the Excluded Contracts; (l) All liabilities and obligations of the Company and the Parent under this Agreement; (m) All liabilities and obligations of the Company and the Parent arising out of the Company's use of the trademarks FN (and design), FLENNUT and FLENNOR on or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesClosing Date; and (gn) All liabilities and obligations relating to the Excluded Assets. In addition to the foregoing liabilities and obligations, at the Closing, the Buyer shall not be assuming any liabilities other liability or obligations obligation of Seller arising the Company relating to the Business except as specifically set forth under or in connection with this AgreementSection 1.3 hereof (collectively, any certificate or other document delivered in connection herewiththe "Excluded Liabilities"). The Excluded Liabilities shall be and remain the sole and exclusive responsibility of the Company, and any the Company shall be solely liable and responsible for, and shall perform and discharge in full, all of the transactions contemplated hereby and therebyExcluded Liabilities.

Excluded Liabilities. The Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are or any of its Affiliates of any kind or nature whatsoever other than the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Liabilities (collectively, the “Excluded Liabilities”):). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following: (a) any liabilities Liabilities of the Seller arising or obligations incurred in connection with the negotiation, preparation, investigation and performance of Seller to this Agreement, the extent related to any Excluded Assetsother Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others; (b) any liabilities Liability for (i) Taxes of the Seller (or obligations any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller in respect (or any stockholder or Affiliate of Indebtednessthe Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law); (c) any liabilities Liabilities relating to or obligations in respect arising out of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8the Excluded Assets; (d) any obligations Liabilities in respect of Seller any pending or any threatened Action arising out of, relating to or otherwise in respect of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, the operation of the Business or retention or severance pay the Purchased Assets to the extent attributable such Action relates to the period such operation on or prior to the Effective Time or which may become payable as a result of the ClosingClosing Date; (e) except as otherwise expressly provided in Section 7.10any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any liabilities under or relating to any Benefit Plan products at any time maintained, contributed to manufactured or required to be contributed to by Seller sold or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to service performed by the Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andSeller; (g) any liabilities or obligations Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller; (h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments; (i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller; (j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business; (k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement; (l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any certificate stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person; (m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees; (n) any Liabilities under the Excluded Contracts or any other document delivered Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing; (o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and (p) any Liabilities arising out of, in respect of or in connection herewith, and with the failure by the Seller or any of the transactions contemplated hereby and therebyits Affiliates to comply with any Law or Governmental Order.

Excluded Liabilities. Seller acknowledges that Notwithstanding the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all provisions of Section 2.04(a) or any other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller provision in this Agreement to the extent related contrary, neither Purchaser nor the Company shall assume and shall not be responsible to pay, perform or discharge any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following: (i) any Liabilities of Seller or any of its Affiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others; (ii) any Liability for wages(A) Taxes of Seller (or any stockholder or Affiliate of Seller) or relating to the Company, vacation paythe Equipment, the Project Contracts or the Assumed Liabilities for any Pre-Closing Tax Period; (B) Taxes that arise out of the consummation of the transactions contemplated hereby; or (C) other paid time offTaxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of the Purchaser under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law); (iii) any Liabilities relating to or arising out of the Applicable Permits and Permit Applications; (iv) any Liabilities in respect of any pending or threatened Action arising out of, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, relating to or retention otherwise in respect of the operation of the Company or severance pay the Equipment or Project Contracts to the extent attributable such Action relates to the period such operation on or prior to the Effective Time or which may become payable as a result of the ClosingClosing Date; (ev) except as otherwise expressly provided in Section 7.10any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, any liabilities under warranty, agreement or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to guaranty made by Seller or any of its Affiliates, or under which by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller or any Affiliate has of its Affiliates; (vi) any recall, design defect or may incur liabilitysimilar claims of any products manufactured or sold or any service performed by Seller or any of its Affiliates; (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers' compensation, severance, retention, termination or other payments; (viii) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any contributionsactions or omissions of Seller; (ix) any trade accounts payable of Seller or the Company (A) which constitute intercompany payables owing to Affiliates of Seller; (B) which constitute debt, benefits loans or liabilities thereforcredit facilities to financial institutions; or (C) which did not arise in the ordinary course of business; (x) any Liabilities to indemnify, reimburse or advance amounts to any liability present or former officer, director, employee or agent of Seller (including with respect to Seller’s or any breach of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination fiduciary obligations by same), except for indemnification of any Benefit Plansame pursuant to Section 6.03 as Seller Indemnified Parties; (fxi) except for any Liabilities associated with debt, loans or credit facilities of Seller and/or the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior Guarantor owing to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedulesfinancial institutions; and (gxii) any liabilities or obligations Liabilities arising out of, in respect of Seller arising under or in connection with this Agreement, any certificate the failure by Seller or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyits Affiliates to comply with any Law or governmental order.

Excluded Liabilities. Seller acknowledges Notwithstanding anything in this Agreement to the contrary, Buyer shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligationsClosing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”): (a) any liabilities all costs and expenses incurred or obligations to be incurred by Sellers in connection with this Agreement and the consummation of Seller to the extent related to any Excluded AssetsTransactions; (b) all Liabilities (i) related to any liabilities current or obligations former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or of any Tax Subsidiary or Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or (ii) arising under, in connection with or in any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its AffiliatesAffiliates being deemed successor of the Business; (c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s any and all Employees, and contractors of Sellers or any of Seller’s Affiliate’s withdrawal their Subsidiaries or partial withdrawal from or termination Affiliates arising at any time before Closing; (d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any Benefit Planother Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2; (e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and (f) all Liabilities arising at any time before Closing with respect to or relating to the ownership or operation of any of the Acquired Assets or Relating to the Business (except for the Recoverable Assumed Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed ). provided that in the Seller Disclosure Schedules; and (g) event of any liabilities or obligations of Seller arising under or in connection with conflict between Section 2.2 and this AgreementSection 2.3, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebySection 2.3 will control.

Excluded Liabilities. All Claims against Seller, and all Liabilities of Seller acknowledges that the sole liabilities and obligations being which are (x) enumerated below in this Section 2.4 or (y) not specifically assumed by Buyer pursuant to Section 2.3 are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, collectively referred to herein as the “Excluded Liabilities”):.” Buyer shall not assume, be deemed to have assumed, or otherwise be responsible or liable for, any of the Excluded Liabilities. Notwithstanding Section 2.3, the following claims against, and liabilities of, Seller are Excluded Liabilities and shall not be assumed or discharged by Buyer: (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except and all Liabilities for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates or any shareholder or equity owner of Seller or Affiliate or for wageswhich such Seller or Affiliate may be liable, vacation paybut excluding (i) those expressly enumerated in Section 2.3, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or and (ii) any Transaction Taxes (which may become payable as a result of the Closingshall be governed by Section 7.1(a)); (eb) except as otherwise expressly provided in Section 7.10any and all Liabilities for indebtedness of Seller with respect to borrowed money (other than obligations with respect to capitalized leases that are Assumed Contracts); (c) any pre-Closing litigation claim or assessment, any liabilities under or relating breach of Contract (excluding Buyer’s obligation to any Benefit Plan at any time maintainedpay the Cure Amounts with respect to the Assumed Contracts), contributed to or required to be contributed to tort, infringement, violation of Law by Seller or any of its AffiliatesAffiliates arising from any facts, events or under which Seller circumstances arising on or prior to the Closing Date, in each case, of any Affiliate has kind or may incur liabilitynature whatsoever and whether related to the Acquired Assets or the Business or otherwise and regardless of when commenced; (d) any and all Liabilities (i) that are the subject of any dispute, litigation, arbitration, judgment, order, decree or any contributionsother proceeding as of the Closing Date, benefits or liabilities therefor, or any liability (ii) with respect to Seller’s periods prior to the Closing Date and are or could be asserted as a claim in litigation or arbitration after the Closing Date, or (iii) arising as a result of actions or omissions with respect to services provided to customers prior to the Closing (including, without limitation, all matters noticed or pending and scheduled on Schedule 4.14 and any such liabilities or obligations that otherwise would be Assumed Liabilities), except to the extent that any of Seller’s Affiliate’s withdrawal the foregoing relates to any of the liabilities or partial withdrawal from obligations expressly enumerated in Section 2.3; (e) any Liabilities of Seller arising out of the ownership or termination operation of an Excluded Asset, including, for the avoidance of doubt, any Liability with respect to Employee Benefit PlanPlans (other than as provided in Section 2.4(g)) and those Contracts and Permits which constitute Excluded Assets; (f) except for the Recoverable Liabilities, any liabilities Liability of Seller or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andof its ERISA Affiliates under Title IV of ERISA; (g) any liabilities or obligations Liability of Seller arising or any of its ERISA Affiliates under COBRA except as provided in Section 6.3(g) below; (h) any pension or retirement Liability of Seller to its current or former employees which are accrued as of the Closing Date, whether or not under any Employee Plan; (i) all Liabilities with respect to any costs and expenses (including all legal, accounting, financial advisory, valuation, investment banking and other third party advisory or consulting fees and expenses) incurred by or on behalf of Seller or any Affiliates of Seller in connection with this Agreement, any certificate the Bankruptcy Case or other document delivered in connection herewith, and any of the transactions contemplated hereby by this Agreement; (j) all Liabilities (i) existing prior to the filing of the Bankruptcy Case that are subject to compromise under the Bankruptcy Case, other than the Cure Amounts and thereby(ii) to the extent not otherwise expressly assumed herein, incurred subsequent to the filing of the Bankruptcy Case and prior to the Closing; and (k) obligations, liabilities or amounts payable to any security holder of Seller or any of its Affiliates.

Excluded Liabilities. Notwithstanding anything herein to the contrary, Buyer does not and will not assume, or otherwise become liable or responsible for, any Liabilities of any Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are of any type or nature other than the Assumed Obligations and Liabilities (all Liabilities of any Seller shall retain all other liabilities and obligationsthan the Assumed Liabilities, including (collectively, the “Excluded Liabilities”):) as a result of this Agreement or the Transaction, regardless of whether or not any of such Excluded Liabilities are the subject matter of any of the representations and warranties of Sellers in this Agreement. Sellers shall retain and agrees to satisfy and discharge, or otherwise be responsible for, all of the Excluded Liabilities, including the following Excluded Liabilities: (a) any liabilities or obligations all of Seller the Sellers’ costs and expenses of operating the Businesses prior to the extent related Closing, including utilities, insurance, and any amounts owed to employees for accrued salary, vacation, bonuses, and time off, except for the Accounts Payable and any Excluded Assetsother Assumed Liabilities; (b) all Claims and Liabilities payable by any liabilities or obligations of Seller in respect of Indebtednessto its Affiliates; (c) all real property mortgage indebtedness owed by any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, Party and any other indebtedness secured by real property or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8interest therein; (d) all Claims and Liabilities owed by any obligations Seller under lines of Seller credit, long- and short-term indebtedness to financial institutions or other holders of any Seller-issued debt instruments and other similar financings, including letters of its Affiliates credit and guarantees; (e) all Liabilities of the Sellers for wagesTaxes relating to the Business, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementthe Assets, or retention or severance pay the Assumed Liabilities for any Pre-Closing Tax Period (including Taxes of a Seller that arise as a result of the Transaction); (f) all Liabilities under any Contract (i) to the extent attributable to any pre-Closing acts, omissions or obligations of any Seller, or (ii) that is not fully and effectively assigned to Buyer (including any required consent or approval of the period other parties thereto where such consent or approval has not been either obtained by the applicable Seller prior to the Effective Time Closing or which may become payable as a result waived in writing by Buyer) unless the benefits of such Contract are made fully available to Buyer; (g) any Seller’s Liabilities for any and all pending or threatened (in writing to Sellers) Proceedings existing at the time of the Closing; (eh) except as otherwise expressly provided in Section 7.10all known or unknown Environmental Claims arising out of the ownership, any liabilities under use or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or operation of any of its Affiliatesthe Assets during the period of occupancy by any Seller on the Real Property, prior to the Closing, including the presence, Release or under which Seller threatened Release or disposal of Hazardous Materials prior to the Closing and any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination Liabilities of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities Seller arising as a result of acts or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurrences occurring prior to the Effective TimeClosing under any Environmental Laws, including any regardless of whether, by operation of law, Buyer is or may also be liable for such Claims (and for purposes of this item (h) only, the term “Seller” shall include any Seller and any Entity of which any Seller is the successor by merger, consolidation or Actionable Incidents disclosed reorganization); (i) all fines, penalties and similar Liabilities, relating to any noncompliance with the KPDES Permit, to the extent set forth or called for under the KPDES Order or otherwise, attributable to pre-Closing time periods (collectively, the “KPDES Fines”); (j) all product liabilities, consumer complaints, warranty issues and other Claims or Liabilities arising out of the sale of products or the furnishing of services by any Seller prior to the Closing; (k) all Claims and Liabilities relating to the assets and properties of any Seller that are not included in the Assets; (l) all Claims and Liabilities relating to the classification by any Seller Disclosure Schedulesof employees of any Seller or leased employees placed with any Seller; (m) all Claims and Liabilities arising out of or relating to income and employment Tax withholding on leased employees placed with any Seller; (n) all Claims and Liabilities under all of Sellers’ Employee Benefit Plans; (o) all employment-related Claims against any Seller; (p) all Claims arising out of any Seller’s compliance or noncompliance with any Legal Requirement prior to the Closing; (q) all known or unknown Off-Site Environmental Matters; (r) all other Claims and Liabilities that are not Assumed Liabilities; and (gs) the Parties intend that upon the Closing, the Buyer and its Affiliates shall not and shall not be deemed to: (i) be a successor (or other such similarly situated party), or otherwise be deemed a successor, to any liabilities Seller, including a “successor employer” for the purposes of the Code, ERISA, Environmental Law or other applicable Legal Requirements; (ii) have any responsibility or liability for any obligations of Seller arising under any Seller, or in connection any Affiliate of any Seller, based on any theory of successor or similar theories of liability; (iii) have, de facto or otherwise, merged with this Agreementor into any Seller; (iv) be an alter ego or a mere continuation or substantial continuation of any Seller, including within the meaning of any certificate foreign, federal, state or local revenue, pension, ERISA, tax, labor, employment, environmental, or other document delivered in connection herewithLegal Requirements (including filing requirements under any such laws, and rules or regulations), or under any products liability law or doctrine with respect to any Seller’s liability under such Legal Requirements; or (v) be holding itself out to the public as a continuation of the transactions contemplated hereby and therebyany Seller.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Neither Parent nor Purchaser Sub is assuming or agreeing to pay, perform or otherwise discharge any other Liability, whether absolute or contingent, ▇▇▇▇▇▇ or inchoate, liquidated or unliquidated, or otherwise, other than solely with respect to Purchaser Sub, the Assumed Obligations Liabilities and Seller shall retain all such other liabilities Liabilities of the Company and obligationsits Affiliates, including (collectivelythe following, the shall be referred to as “Excluded Liabilities”):, and all Excluded Liabilities shall be retained by the Company or the other Persons liable for such obligations: (a) any liabilities Liabilities in respect of Taxes for which the Company or obligations any of Seller its Affiliates is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4, any Liabilities of the extent related Company or its Affiliates for Taxes, and any Liabilities in respect of payments required to be made after the Closing Date under any Excluded AssetsTax sharing, Tax indemnity, Tax allocation or similar contracts to which the Company, its Affiliates or any of the Purchased Assets was obligated, or was a party, on or prior to Closing; (b) any liabilities or obligations of Seller Company Expenses other than payments made in respect of Indebtednessthe Retention Program in an amount not to exceed $25 million; (c) any liabilities indebtedness of the Company or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8its Affiliates; (d) any obligations Liabilities in respect of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay Excluded Assets and any Liabilities to the extent attributable not relating to the period prior to the Effective Time or which may become payable as a result of the ClosingPurchased Assets; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or all Liabilities pursuant to the WARN Act arising prior to the Closing Date and all Liabilities (other than the Assumed Employee Liabilities) relating to or arising out of any Benefit Plan at compensation, employee benefits, accrued vacation or paid time off, deferred compensation, pension or retirement plans, the CBAs or other programs, policies, procedures or other arrangements of any time maintainedtype or description, including for this purpose any benefits provided or available to current or former employees, dependents of employees or former employees, independent contractors or any other person, which are maintained or contributed to (or required to be formerly maintained or contributed to to) by Seller or any of its Affiliates, or under which Seller the Company or any Affiliate or former Affiliate of the Company, or to which the Company or its Affiliates or former Affiliates has or may incur liabilityformerly had any obligation to contribute or provide benefits, however maintained, funded or any contributionssponsored, benefits whether or liabilities therefornot legally binding or subject to ERISA, whether providing individual or any liability with respect to Seller’s a group coverage, and whether written or any of Seller’s Affiliate’s withdrawal unwritten, funded or partial withdrawal from unfunded, insured or termination of any Benefit Planself-insured; (f) except for the Recoverable Assumed Employee Liabilities, any liabilities Liabilities relating to (i) any Transferred Employee to the extent arising on or obligations arising from prior to the Closing (or the applicable Subsequent Closing, Distribution Center Closing or Inactive Employee Transfer Date), (ii) current or former employees of the Company or any Claim of its Affiliates who are not Transferred Employees or (iii) the incurrence or triggering of any withdrawal liability under ERISA by the Company or any of its ERISA Affiliates (including any workers’ compensation claimcontingent or secondary withdrawal liability) involving the Purchased Assets to any Multiemployer Plan (A) at or the Business filed or arising from an Actionable Incident occurring prior to the Effective TimeClosing, including other than any such Claims liability caused by the failure of Purchaser’s Sub to comply with its obligations under Section 6.15 and (B) following the Closing, solely to the extent caused by the failure of the Company or Actionable Incidents disclosed in the Seller Disclosure Schedules; andits Affiliates to comply with their obligations under Section 6.15; (g) any (i) Liabilities arising out of the ownership or operation of the Purchased Assets prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing) or any Proceeding related to or arising out of any occurrence or event happening prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing), in each case other than to the extent included in the Assumed Pre-Closing Liabilities, (ii) Liabilities arising under any Environmental Law or regarding any Hazardous Materials to the extent arising from, related to, or resulting from the ownership or operation of the Purchased Assets other than to the extent (A) included in the Assumed Pre-Closing Liabilities or (B) arising from events or conditions first occurring or existing after the Closing (or the applicable Subsequent Closing or Distribution Center Closing), (iii) 1199SEIU Liabilities other than to the extent included in the Assumed Pre-Closing Liabilities or (iv) other than payments made in respect of the Retention Program in an amount not to exceed $25 million, Liabilities arising from the conduct, whether before, at or after the Closing, of the business of the Company other than the operation of the Acquired Stores, Distribution Centers and the Purchased Assets; (h) any Liabilities related to the Company’s Wellness+ and Plenti programs other than as set forth in Section 1.3(b) above; (i) any Liabilities of the Company for intercompany loans or payables to any Affiliates of the Company (including any payables and other liabilities or obligations of Seller arising under the Company or in connection its Affiliates with this Agreement, respect to the Acquired Stores owed to any certificate other business unit of the Company or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyCompany’s Affiliates); and (j) any Liabilities of the Company reserved for, or required by GAAP to be reserved for, on the balance sheet of the Company as of the Closing, except to the extent specifically set forth in Section 1.3 of this Agreement.

Excluded Liabilities. Seller acknowledges that Notwithstanding anything in Section 2.02(c) or any other provision of this Agreement or any Ancillary Agreement to the sole liabilities contrary, Buyer is not assuming or agreeing to pay or discharge any of the following liabilities, commitments or obligations of the Sellers set forth in this Section 2.02(d) (all such liabilities, commitments and obligations not being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, being herein referred to as the “Excluded Liabilities”):). All of the Excluded Liabilities will remain the sole responsibility of and will be retained, paid, performed and discharged by the Sellers. The Excluded Liabilities consist of the following: (ai) other than as taken into account in the Final Working Capital Statement and subject to Section 2.15, any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes Debt of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wagestheir Affiliates; (ii) any liability, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, commitment or retention or severance pay obligation to the extent attributable relating to or arising under any Excluded Asset; (iii) any liability, commitment or obligation for Taxes that GE is responsible for pursuant to the period Tax Matters Agreement, and any other liability, commitment or obligations for Taxes except as provided in Section 2.02(c)(i) or Section 2.02(c)(iii); (iv) any liability, commitment or obligation arising out of the Actions set forth on Section 2.02(d)(iv) of the Disclosure Schedule (the “Excluded Litigation”) or the other matters set forth on Section 2.02(d)(iv) of the Disclosure Schedule; (v) any liability, commitment or obligation arising out of the workers’ compensation claims set forth on Section 2.02(d)(v) of the Disclosure Schedule, as well as any other workers compensation claims applicable to the Business Employees and the Inactive Business Employees filed prior to the Effective Time Closing (the “Excluded Workers’ Comp Claims”); (vi) except as otherwise provided in Exhibit C, any liability, commitments or obligations under the Employee Plans, or any other employee plans or benefits of any kind for Sellers’ or their Affiliates’ employees or former employees or both; (vii) any liability, commitment or obligation, whether accruing before, on or after the Closing Date, whether known or unknown, fixed or contingent, asserted or unasserted, and not satisfied or extinguished as of the Closing Date and to the extent relating to (A) the environment or natural resources, human health and safety or any actual or alleged violation of any Environmental Law or Release of Hazardous Substance (x) at any property that was formerly owned or leased in connection with the Business or is not a Transferred Asset, or (y) not arising from or relating to the Transferred Assets or the Business, or (B) any Release of Hazardous Substances prior to the Closing at any third party site to which the Business shipped such Hazardous Substances for the purpose of treatment, storage or disposal prior to the Closing Date; (viii) except as otherwise may become be or remain outstanding as of the Closing pursuant to Section 5.08 hereof, any intercompany liabilities, commitments or obligations between any Seller or Altair U.S. and GE or its Affiliates, including, but not limited to, any intercompany accounts payable (including trade accounts payable); any loan, agreement or advance by GE or its Affiliates to any Seller or to Altair U.S.; (ix) except as otherwise provided in Section 2.02(c)(iv) or 2.02(c)(v), any claim by GE or its Affiliates against the Business or Altair U.S. arising as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under act or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under omission which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring occurred prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesClosing; and (gx) any liabilities liability, commitment or obligations of Seller arising obligation under or in connection with this Agreementany contract that is not an Assumed Contract, including, but not limited to, any certificate contract with a supplier, distributor, sales agent or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebythird party that is not an Assumed Contract.

Excluded Liabilities. Notwithstanding any other provision of this Agreement to the contrary, including Section 2(c), the Buyer is not assuming and the Seller acknowledges that the sole shall pay, discharge, perform or otherwise satisfy, all liabilities and obligations being assumed by Buyer are other than the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Liabilities (collectively, the “Excluded Liabilities”):), including the following: (ai) all Taxes of any Seller Entity, including arising out of or resulting from the consummation of this Agreement and all Taxes arising from or relating to the Transferred Assets or the operation of the Business that are incurred in or attributable to any period that ends prior to or on and including the Closing Date, or any portion of any period that includes but ends after the Closing Date, except for Transfer Taxes (“Retained Taxes”); (ii) all liabilities in respect of products or obligations services manufactured, marketed, distributed, supplied, performed or sold by the Business prior to the Closing Date, including product liability and negligence claims, liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty or similar claims, and liabilities for infringement, misappropriation, or other violation of Seller third-party Intellectual Property whether the foregoing arises directly, or under an obligation to indemnify, or otherwise; (iii) all Environmental Liabilities alleged by or payable to any Person other than a Buyer Entity or its Affiliates that arise out of the migration of Hazardous Materials from any Transferred Asset to any property owned or operated by such Person, to the extent related the Environmental Condition or Release of Hazardous Materials giving rise to any Excluded Assetssuch Environmental Liabilities was present on, at, or underlying the Transferred Asset, or the Release of Hazardous Materials occurred on or at the Transferred Asset, on or prior to the Closing Date; (biv) any liabilities liability or obligations obligation of any Seller Entity or any Affiliate of any Seller Entity to or with respect to any of its or their current or former employees, officers, directors or other personnel (or any of their dependents or beneficiaries), whether or not contingent, including, without limitation, any liability of Seller or a Seller Entity described in respect of IndebtednessSection 5(f); (cv) other than as set forth in Section 2(c)(vii), any liabilities Employee Plan and any liability of, to or obligations in with respect of Taxes of Seller or to any Tax Affiliate of SellerEmployee Plan, or any liability or obligation arising under Title I or IV or Section 302 of Seller the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 412 or 4980B of the Code, including, but not limited to (i) any liability for unpaid Taxes complete or partial withdrawal under any multiemployer plan (as defined in Section 3(37) of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign lawERISA) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 4203 or Section 7.84205 of ERISA, respectively, and (ii) any liability to the Pension Benefit Guaranty Corporation (including, without limitation, liabilities for premiums and terminations); (dvi) any obligations indebtedness for borrowed money or guarantees thereof outstanding as of Seller or any of its Affiliates for wages, vacation paythe Closing Date, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, than accounts payable assumed by Buyer pursuant to Section 2(c)(i) or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing2(c)(ii); (evii) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planintercompany liabilities; (fviii) except for the Recoverable Liabilitiesany liability or obligation relating to an Excluded Asset; provided, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior however, that to the Effective Timeextent, including if any, that any liability might be partly an Assumed Liability and partly an Excluded Liability, the apportionment of such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedulesliability shall be determined pursuant to equitable principles; and (gix) any all liabilities accruing, arising out of or obligations of Seller arising under relating to the conduct or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any operation of the transactions contemplated hereby and therebyBusiness or the ownership or use of the Transferred Assets before the Closing Date, except as set forth in Section 2(c)(iii) above.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Notwithstanding any other provision of this Agreement, except for the Assumed Obligations and Seller Liabilities expressly specified in Section 2.2, Buyer shall retain all other not assume, or otherwise be responsible for, any of Seller's liabilities and or obligations, including whether actual or contingent, matured or unmatured, liquidated or unliquidated, known or unknown, or related or unrelated to the Business or the Assets, whether arising out of occurrences prior to, at or after the date hereof (collectively, the “"Excluded Liabilities”):"), which Excluded Liabilities include, without limitation: (a) 2.3.1 any liabilities liability or obligations of Seller obligation to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; any employees or former employees of Seller including without limitation (ci) any liabilities employment agreement, whether or obligations in respect of Taxes of not written, between Seller or and any Tax Affiliate of Sellerperson, or (ii) any liability of Seller for unpaid Taxes of under any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan employee plan at any time maintained, contributed to or required to be contributed to by or with respect to Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s 's withdrawal or partial withdrawal from or termination of any Benefit Planemployee plan and (iii) any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation, which shall have been asserted on or prior to the Closing Date or is based on acts or omissions which occurred on or prior to the Closing Date; (f) except for the Recoverable Liabilities, 2.3.2 any liabilities liability or obligations obligation of Seller in respect of any Tax; 2.3.3 any liability arising from any Claim (including injury to or death of any workers’ compensation claim) involving person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from defects in products sold or services performed by or on behalf of Seller or any other person or entity on or prior to the Purchased Assets or the Business filed Closing Date, or arising from an Actionable Incident occurring any other cause, including without limitation any liabilities arising (on a date of occurrence basis or otherwise) on or prior to the Effective TimeClosing Date relating to the use or misuse of Equipment; 2.3.4 any liability or obligation of Seller arising out of or related to any Action against Seller or any Action which adversely affects the Assets and which shall have been asserted on or prior to the Closing Date or to the extent the basis of which shall have arisen on or prior to the Closing Date; 2.3.5 any liability or obligation of Seller resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by, this Agreement (including without limitation any such Claims liability or Actionable Incidents disclosed in obligation of Seller pursuant to Article VIII hereof); 2.3.6 any liability or obligation related to the Seller Disclosure SchedulesFacilities; 2.3.7 any liability or obligation arising out of any environmental law; 2.3.8 any liability or obligation arising under or related to any lease relating to the Real Property; and (g) 2.3.9 any liabilities or outstanding debt obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebySeller.

Excluded Liabilities. Seller acknowledges that the sole shall be solely liable for all liabilities and obligations being to the extent arising from, or to the extent arising in connection with, ownership of the Assets or to the operation of the Business prior to the Closing Date, whether or not reflected on its books and records. Neither Buyer nor its Affiliates will assume by virtue of this Agreement or the transactions contemplated hereby or otherwise, and will have no liability for, any obligations and liabilities of (and Seller and its Affiliates and their respective direct or indirect subsidiaries shall retain and remain solely liable for and obligated to discharge), all of their debts, contracts, agreements, commitments, obligations and other liabilities of any nature whatsoever, whether known or unknown, accrued or not accrued, fixed or contingent, not expressly assumed by Buyer are pursuant to the Assumed Obligations and Seller shall retain Assumption Agreement (all other such liabilities and obligations, including (collectively, obligations not being assumed being herein called the “Excluded Liabilities”):), including without limitation, the following: (a) Any liability for breaches of any liabilities and every contract or obligations of Seller any other instrument, or purchase order or any liability for payments or amounts due under any contract, agreement, lease, license, commitment or any other instrument, contract, document or purchase order to the extent related to the Business excluding however, this Agreement and all other contracts or instruments entered into among the Parties related to the transactions contemplated by this Agreement or resulting from any Excluded Assetsbreach of any such contract or other instrument by Buyer or its Affiliates; (b) Any liability or obligation for Taxes attributable for any liabilities period, or obligations of attributable to or imposed upon the Client Accounts for any period (or portion thereof) through the Closing Date, including, without limitation, any Taxes attributable to Seller in respect of Indebtednessor its Affiliates or arising from the transactions contemplated by this Agreement; (c) Any liability or obligation for or in respect of any loan, other indebtedness for money borrowed, or account payable including any such liabilities owed to Affiliates of Seller; (d) Any liability or obligation arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time, to the extent relating to any action or omission by or on behalf of Seller or any and all of its Affiliates and their respective direct or indirect subsidiaries, including, without limitation, any liability for violations of federal or state securities or other Laws; (e) Any liability or obligations to the extent relating to Seller’s agreements with Registered Representatives and Investment Advisory Representatives; (f) Any liability or obligation arising out of any “employee benefit plan,” as such term is defined by ERISA or related to other Plans of Seller or its Affiliates; (g) Any liability or obligation for making payments of any kind (including as a result of the affiliation of Registered Representatives or Investment Advisor Representatives or as a result of the termination of employment of employees, or other claims arising out of the terms and conditions of employment, or for vacation or severance pay or otherwise) to employees of Seller, its Affiliates and their respective direct and indirect subsidiaries, or in respect of payroll taxes for employees of Seller, its Affiliates and their respective direct and indirect subsidiaries; (h) Any liability or obligation for making payments of any kind with respect to the Client Accounts, whether to customers or other third parties, where such liability or obligation was incurred or arose prior to the Closing Date; (i) Any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesExcluded Assets; and (gj) any liabilities Any liability or obligations obligation of Seller arising under or incurred in connection with the making or performance of this Agreement, any certificate or other document delivered in connection herewith, Agreement and any of the transactions contemplated hereby and therebyincluding, but not limited to, any liability or obligation related to the failure to secure any necessary authorizations from any Governmental Entity.

Excluded Liabilities. Seller acknowledges that Notwithstanding anything to the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and contrary contained herein, Seller shall retain all other liabilities and obligationsnot assign and Buyer shall not assume any debts, including obligations or Liabilities of Seller not expressly assumed pursuant to Section 2.1(c) hereof (collectively, the “Excluded Liabilities”): (a) any liabilities or ). The Excluded Liabilities shall include all Liabilities and obligations of Seller not specifically assumed pursuant to Section 2.1(c), regardless of any disclosure to Buyer, including the following: (i) Revolving line of credit issued by Heartland Bank and Trust; (ii) Heartland Bank and Trust Short term capital note; (iii) Any and all Heartland Bank and Trust Current Liabilities and long term Liabilities; (iv) Any and all Officer Loans payable to D▇▇▇▇ ▇▇▇▇▇▇, J▇▇▇▇ ▇▇▇▇▇▇ and D▇▇▇▇▇▇ ▇▇▇▇▇; (v) all Liabilities of Seller to any employee or contractor of Seller (which shall include compensation, severance payments, accrued vacation, profit-sharing, 401(k) and similar contributions and any bonus and/or incentive payments); (vi) all obligations or Liabilities (including Liabilities under ERISA or COBRA), in respect of any employee pension or benefit plan or program except to the extent related to any Excluded Assetsthat as such obligations and liabilities reflected in the Assumed Contracts or Assumed Obligations; (bvii) any liabilities all obligations or obligations of Seller Liabilities in respect of Indebtedness; any employees, consultants, agents, contractors or advisors pursuant to any oral or written consulting, employment, agency, independent contractor, change in control, severance or similar agreement or arrangement, accrued sick leave or paid-time off obligations, except as such obligations and Liabilities (ci) any liabilities are reflected in the Assumed Contracts and relate to periods following the Closing Date, or obligations (ii) are included in respect of Taxes of Seller or any Tax Affiliate the Assumed Obligations; All Excluded Liabilities shall be the responsibility of Seller, or and Seller and the Seller Members agree to jointly and severally indemnify and hold Buyer harmless against any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Excluded Liabilities, any liabilities debts, obligations, claims or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Timedamages therefrom, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, costs and any of the transactions contemplated hereby and therebyexpenses relating thereto.

Excluded Liabilities. Seller acknowledges that the sole shall be solely liable for all liabilities and obligations being to the extent arising from, or to the extent arising in connection with, ownership of the Purchased Assets or to the operation of the Business prior to the Closing Date, whether or not reflected on its books and records. Neither Buyer nor its Affiliates will assume by virtue of this Agreement or the transactions contemplated hereby or otherwise, and will have no liability for, any obligations and liabilities of (and Seller and its Affiliates and their respective direct or indirect subsidiaries shall retain and remain solely liable for and obligated to discharge), all of their debts, contracts, agreements, commitments, obligations and other liabilities of any nature whatsoever, whether known or unknown, accrued or not accrued, fixed or contingent, not expressly assumed by Buyer are the Assumed Obligations and Seller shall retain in writing (all other such liabilities and obligations, including (collectively, obligations not being assumed being herein called the “Excluded Liabilities”):), incurred or arising prior to the Closing Date, including without limitation, the following: (a) Any liability for breaches of any liabilities and every contract or obligations of Seller any other instrument, or purchase order or any liability for payments or amounts due under any contract, agreement, lease, license, commitment or any other instrument, contract, document or purchase order to the extent related to the Business excluding however, this Agreement and all other contracts or instruments entered into among the Parties related to the transactions contemplated by this Agreement or resulting from any Excluded Assetsbreach of any such contract or other instrument by Buyer or its Affiliates; (b) Any liability or obligation for Taxes attributable for any liabilities period, or obligations of attributable to or imposed upon the Client Accounts for any period (or portion thereof) through the Closing Date, including, without limitation, any Taxes attributable to Seller in respect of Indebtednessor its Affiliates or arising from the transactions contemplated by this Agreement; (c) Any liability or obligation for or in respect of any loan, other indebtedness for money borrowed, or account payable including any such liabilities owed to Affiliates of Seller; (d) Any liability or obligation arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time, to the extent relating to any action or omission by or on behalf of Seller or any and all of its Affiliates and their respective direct or indirect subsidiaries, including, without limitation, any liability for violations of federal or state securities or other Laws; (e) Any liability or obligations to the extent relating to Seller’s agreements with Registered Representatives; (f) Any liability or obligation arising out of any “employee benefit plan,” as such term is defined by ERISA or related to other Plans of Seller or its Affiliates; (g) Any liability or obligation for making payments of any kind (including as a result of the affiliation of Registered Representatives or as a result of the termination of employment of employees, or other claims arising out of the terms and conditions of employment, or for vacation or severance pay or otherwise) to employees of Seller, its Affiliates and their respective direct and indirect subsidiaries, or in respect of payroll taxes for employees of Seller, its Affiliates and their respective direct and indirect subsidiaries; (h) Any liability or obligation for making payments of any kind with respect to the Client Accounts, whether to customers or other third parties, where such liability or obligation was incurred or arose prior to the Closing Date; (i) Any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesExcluded Assets; and (gj) any liabilities Any liability or obligations obligation of Seller arising under or incurred in connection with the making or performance of this Agreement, any certificate or other document delivered in connection herewith, Agreement and any of the transactions contemplated hereby and therebyincluding, but not limited to, any liability or obligation related to the failure to secure any necessary authorizations from any Governmental Entity.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations Liabilities, the Buyer Entities shall not assume and under no circumstances shall the Buyer Entities be obligated to pay or assume, and none of the assets of the Buyer Entities shall be or become liable for or subject to any liability, indebtedness, commitment, or obligation of the Seller shall retain all other liabilities and obligationsEntities, including whether known or unknown, fixed or contingent, recorded or unrecorded, currently existing or hereafter arising or otherwise (collectively, the “Excluded Liabilities”):), including, without limitation, the following Excluded Liabilities: (a) any liabilities debt, obligation, expense or obligations of Seller to the extent related to any Excluded Assetsliability that is not an Assumed Liability; (b) any liabilities claims or obligations of Seller in respect of Indebtednesspotential claims for medical malpractice or general liability relating to acts or omissions asserted to have occurred prior to the Effective Time; (c) any liabilities or those claims and obligations (if any) specified in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Schedule 1.4 hereto; (d) any liabilities or obligations associated with or arising out of any of the Excluded Assets; (e) liabilities and obligations of the Seller Entities in respect of periods prior to the Effective Time arising under the terms of the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or other third-party payor programs, as well as under the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136), as amended (the “CARES Act”), including, without limitation, in respect of any cost report, any audit under the Medicare RAC program or any noncompliance with applicable law or contractual obligations related to the billing or collection of its Affiliates for wagesservices, vacation payCARES Act funding and any liability arising pursuant to the Medicare, other paid time offMedicaid, employment TaxesCHAMPUS/TRICARE, bonuses, other incentive compensation, commissions, expense reimbursementBlue Cross, or retention any other third-party payor programs as a result of the consummation of any of the transactions contemplated under this Agreement; (f) federal, state or severance pay to local tax liabilities or obligations of the extent attributable to the period Seller Entities in respect of periods prior to the Effective Time or which may become resulting from the consummation of the transactions contemplated herein including, without limitation, any income tax, any franchise tax, any tax recapture, any sales and/or use tax, and any FICA, FUTA, workers’ compensation, and any and all other taxes or amounts due and payable as a result of the Closingexercise by the employees at the Facilities of such employees’ right to vacation, sick leave, and holiday benefits accrued while in the employ of the Seller Entities (provided, however, that this clause (f) shall not apply to any and all taxes payable with respect to any employee benefits constituting Assumed Liabilities under Section 1.3(c) hereof); (eg) except as otherwise expressly provided liability for any and all claims by or on behalf of the Seller Entities’ employees relating to periods prior to the Effective Time including, without limitation, liability for any compensation-related payments, pension, profit sharing, deferred compensation, equity or equity-related compensation, incentive compensation, fringe benefit, tuition reimbursement, severance, termination pay, change in Section 7.10control or retention payments, bonuses or any other employee benefit plan of whatever kind or nature or any employee health and welfare benefit plans, liability for any EEOC claim, ADA claim, FMLA claim, wage and hour claim, unemployment compensation claim, or workers’ compensation claim, and any liabilities or obligations to former employees of the Seller Entities under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (provided, however, that this clause (g) shall not apply to any and all employee benefits constituting Assumed Liabilities under Section 1.3(c) hereof); (h) any obligation or liability accruing, arising out of, or relating to any Benefit Plan at any time maintainedfederal, contributed to state or required to be contributed to by local investigations of, or claims or actions against, the Seller Entities or any of its Affiliates, or under which Seller their Affiliates or any Affiliate has of their employees, medical staff, agents, vendors or may incur liability, or any contributions, benefits or liabilities therefor, or any liability representatives with respect to Seller’s acts or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring omissions prior to the Effective Time; (i) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of the Seller Entities, their Affiliates or, to the extent related to their services to the Seller Entities, their directors, officers, employees and agents claimed to violate any constitutional provision, statute, ordinance or other law, rule, regulation or order of any governmental entity; (j) liabilities or obligations arising out of any breach by the Seller Entities prior to the Effective Time of any Contract; (k) liabilities or obligations arising as a result of any breach by the Seller Entities at any time of any contract or commitment that is not expressly assumed by the Buyer Entities in this Agreement; (l) any debt, obligation, expense, or liability of the Seller Entities arising out of or incurred solely as a result of any transaction of the Seller Entities occurring after the Effective Time; (m) any liability of the Seller Entities relating to violations of law, including any but not limited to violations of federal or state laws regulating fraud such as the federal Anti-Kickback Law (42 U.S.C. § 1320(a)-7(b) et seq.) (the “Anti-Kickback Law”), the Ethics in Patient Referrals Act (42 U.S.C. § 1395mm et seq.) (the “▇▇▇▇▇ Law”), and the False Claims or Actionable Incidents disclosed in Act (31 U.S.C. § 3729 et seq.) (the Seller Disclosure Schedules“False Claims Act”); and (gn) all liabilities and obligations relating to any liabilities oral agreements, oral contracts or obligations of Seller arising under or oral understandings with any referral sources including, but not limited to, physicians, unless reduced to writing, identified in connection with this Agreement, any certificate or other document delivered in connection herewithSchedule 1.1(g) hereto, and any expressly assumed as part of the transactions contemplated hereby and therebyContracts.

Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement, Buyer does not assume and will not be obligated to pay, perform, or otherwise discharge any of the following liabilities or obligations of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including or its Affiliates (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract Contract or otherwise, including without limitation, any Taxes relating to, pertaining to or arising from the Purchased Assets for periods (or portions thereof) ending on or prior to the Closing Date, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 3.5 or Section 7.87.7; (c) subject to Article VIII, any liabilities or obligations in respect of any employees of Seller or its Affiliates, including any obligations of Seller for benefits, bonuses, wages, employment Taxes, or severance pay and any liability or obligations arising under any Seller Plan; (d) any liabilities or obligations relating to the disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities, by Seller, of Hazardous Materials at any Off-Site Location, provided that for purposes of this Section 2.4(d), “Off-Site Location” does not include any location to, at, or through which Hazardous Materials originally disposed of at, discharged from, emitted from or Released at the Purchased Assets have migrated, including, but not limited to, surface waters that have received waste water discharges from the Purchased Assets (it being understood that the foregoing proviso shall not in any way diminish Seller’s liabilities and obligations under this Agreement with respect to manufactured gas plant sites); (e) liabilities or obligations relating to any properties (other than Purchased Assets) formerly owned or operated by the Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period predecessors prior to the Effective Time or which may become payable as a result of the Closing; (ef) except as otherwise expressly provided in Section 7.10, any liabilities under or obligations reflected on the Final Balance Sheet, other than Actual Assumed Balance Sheet Obligations and liabilities that are fully reflected as reductions to Net Transmission Plant Investment; (g) liabilities or obligations relating to any Benefit Plan at any time maintainedmanufactured gas plant sites at, contributed affecting or related to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planthe Purchased Assets; (fh) except for the Recoverable Assumed Environmental Liabilities, any liabilities or obligations arising from any Claim (including any workers’ workers compensation claimClaim) involving related to the Purchased Assets or the Business filed or arising of which Seller has received written notice from an Actionable Incident occurring a third party prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andClosing; (gi) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby; (j) subject to Section 7.18, all pre-closing liabilities and obligations of Seller, of whatever nature, to the extent such liabilities are covered by a third party insurance policy maintained by Seller and then only to the extent actual proceeds are received by Seller from such third party insurer in respect of such liabilities or obligations; (k) all liabilities and obligations of Seller or in respect of the Purchased Assets existing on or after the Closing Date under any State Regulatory Orders issued prior to the Closing, other than the liabilities or obligations (i) under the State Regulatory Orders applicable to the Purchased Assets set forth on Schedule 2.3(e), (ii) imposed on Buyer or the Purchased Assets in connection with any Required Regulatory Approval, or (iii) that relate to customary transmission facility siting or siting certification matters within the jurisdiction of the Governmental Entity issuing such State Regulatory Order; (l) the liabilities or obligations set forth on Schedule 2.4(l); (m) liabilities and obligations under Purchased Agreements for the provision of any Ancillary Services or that would otherwise cause Buyer to be considered a customer of electricity transmission service or electricity market participant under FERC rules or regulations; (n) liabilities and obligations under Purchased Agreements to the extent not primarily related to the Purchased Assets or Transmission; and (o) liabilities and obligations under the Settlement Agreement dated October 31, 2002 between Interstate Power Light and Electric and Southern Minnesota Municipal Power Agency.

Excluded Liabilities. Neither Buyer nor any of its Affiliates shall assume any Liabilities of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectivelysuch unassumed Liabilities, the “Excluded Liabilities”):) other than those specifically set forth in Section 2.3. Without limiting the generality of the foregoing, in no event shall Buyer or any of its Affiliates assume or incur any Liability in respect of, and Seller shall remain bound by and liable for, and shall pay, discharge or perform when due, the following Liabilities of Seller: (a) all Liabilities under any liabilities Assigned Contract that arise after the Closing Date but that arise out of or obligations of Seller relate to any failure to perform, improper performance, warranty or other breach, default or violation that occurred on or prior to the extent related Closing Date, including any failure to comply with or any Excluded Assetsviolation of any Law by Seller or its Affiliates; (b) all Liabilities for Taxes of the Seller (including, for the avoidance of doubt, any liabilities Taxes of Affiliates of the Seller for which the Seller is liable pursuant to Treasury Regulation Section 1.1502-6 or obligations any similar provision of state, local or non-U.S. Law) including (i) any Taxes of the Seller arising as a result of Seller’s operation of its business or ownership of the Purchased Assets on or prior to the Closing Date, (ii) any Taxes of the Seller that will arise as a result of the sale and transfer of the Purchased Assets pursuant to this Agreement (other than any such Taxes as Buyer has agreed to bear as provided in respect Section 7.5(a)), and (iii) any deferred Taxes of Indebtednessany nature; (c) any liabilities or obligations in respect of Taxes all Liabilities of Seller under the Seller Benefit Plans or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any Tax Affiliate of Seller, other employee plans or any liability of Seller for unpaid Taxes benefits of any Person under Treasury Regulation section 1.1502-6 (kind for Seller’s employees or similar provision of state, local, former employees or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8;both; and (d) all Liabilities of Seller under any obligations employment, severance, retention or termination agreement with any employee of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby.

Excluded Liabilities. Seller acknowledges Without implication that Purchaser is assuming any liability not expressly excluded by this Section 2.3 and without implication that any of the sole liabilities and obligations being assumed by Buyer are following would constitute Assumed Liabilities but for the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectivelyprovisions of this Section 2.3, the “Excluded Liabilities”):following claims against and liabilities of Seller are excluded and shall not be assumed or discharged by Purchaser: (a) trade or other accounts payable as of the Closing Date, of any liabilities type or obligations of Seller to nature (the extent related to any Excluded Assets"Accounts Payable"); (b) any liabilities or obligations of for legal, accounting, audit and investment banking fees, brokerage commissions, and any other expenses incurred by Seller in respect connection with the negotiation and preparation of Indebtednessthis Agreement and the sale of the Purchased Assets to Purchaser; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (Federal, state or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8local taxes; (d) any obligations liability for or related to indebtedness of Seller to banks, financial institutions, securities- holders or any of its Affiliates for wagesother persons or entities (or their agents, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementtrustees, or retention or severance pay representatives) with respect to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closingborrowed money; (e) except as otherwise expressly provided in Section 7.10, any liabilities under of Seller to the extent that their existence or relating to any Benefit Plan at any time maintainedmagnitude constitutes or results in a breach of a representation, contributed to warranty or required to be contributed to covenant made by Seller or any of its Affiliatesto Purchaser herein, or under which Seller or makes the information contained in any Affiliate has or may incur liabilitySchedule attached hereto, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planmaterially incorrect; (f) except for the Recoverable Liabilities, any liabilities of Seller under those leases, contracts, insurance policies, sales orders, purchase orders, service or obligations arising from any Claim supply agreements, commitments or other obligations, which are not accepted by and assigned to Purchaser in accordance with the provisions of Sections 1.2(d), (including any workers’ compensation claimg), (j) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andand (o) of this Agreement; (g) any liabilities or obligations of Seller under collective bargaining agreements pertaining to employees of Seller; any liabilities of Seller to pay severance benefits to employees of Seller whose employment is terminated prior to the Closing Date or in connection with the sale of the Purchased Assets pursuant to the provisions hereof; or any liability under ERISA (as herein defined) or any Federal or state civil rights or similar law, resulting from the termination of employment of employees; (h) liabilities for returns, refunds or allowances arising out of or with respect to customer complaints or disputes which accrued (i.e., were based on goods or services provided) prior to the Closing Date, whether required by a governmental body or otherwise; (i) any claims against or liabilities of Seller for injury to or death of persons or damage to or destruction of property (including, without limitation, any worker's compensation claim) regardless of when said claim or liability is asserted, including, without limitation, any claim or liability for consequential or punitive damages in connection with the foregoing; (j) any liabilities under or for contributions to any employee benefit plans, including multi-employer pension plans (each as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or under any other employee welfare or benefit plans to which Seller contributes on behalf of any employees, or with respect to any health, medical, dental, or disability benefits for any of Seller's employees; (k) any liabilities (whether asserted before or after Closing) for or arising in connection with any misfeasance or malfeasance of Seller or its agents in the conduct of the Business, or any breach of a representation, warranty, or covenant, or for any claim for indemnification, contained in any Permit or contract, agreement, lease or commitment referred to in Section 2.2 hereof to the extent that such liability, breach or claim arose out of or by virtue of Seller's performance or nonperformance thereunder on or prior to the Closing Date, it being understood that, as between Seller and Purchaser, this paragraph (k) shall apply notwithstanding any provisions which may be contained in any form of consent to the assignment of any such contract or document, or any novation agreement, which, by its terms, imposes such liabilities upon Purchaser and which assignment or novation agreement is accepted by Purchaser notwithstanding the presence of such a provision, and that Seller's failure to discharge any such liability shall entitle Purchaser to indemnification in accordance with the provisions of Article VIII hereof; (l) any liabilities of Seller incurred in connection with the transfer of the Purchased Assets hereunder, including without limitation, and Federal, state or local income, transfer or other tax; (m) any liabilities under any employment contracts with any of Seller's employees, or for salaries, wages, bonuses, vacation pay, incentive compensation, severance pay or other compensation which are otherwise owed to employees of Seller, accrued prior to the Closing Date; (n) any liabilities arising out of or in connection with any violation by Seller of a statute or governmental rule, regulation or directive; (o) any liability of Seller under or in connection with this Agreementany litigation to which Seller is or may hereafter become a party; (p) any liabilities to any of Seller's Affiliates, including without limitation, any certificate management agreement(s) with respect to the Business or other document delivered in connection herewith, and any portion thereof; and (q) without limitation by the specific enumeration of the transactions contemplated hereby and therebyforegoing, any liabilities not expressly assumed by Purchaser pursuant to the provisions of Section 2.2.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Notwithstanding Section 2.3, the Assumed Obligations Liabilities shall not include, and neither the Buyer nor any of its Affiliates will assume, nor will any of them be liable for, nor shall the Buyer or any of its designated Affiliates be deemed to have assumed or agreed to pay, and the Seller Entities shall retain and, as and when required, pay, perform and discharge, all of their Liabilities other liabilities and obligations, including than the Assumed Liabilities (collectively, the “Excluded Liabilities”):). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following Liabilities of the Seller Entities: (a) any liabilities or obligations Liability of Seller any nature to the extent primarily related to any the Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect all accounts payable of Taxes of the Seller or any Tax Affiliate of SellerEntities to third parties to the extent arising out of, related to, or in connection with the Business, including accounts payable for inventory purchases, property and equipment purchases, and other direct Liabilities, including uninvoiced receipts and manual accruals in the Ordinary Course of Business; (d) (i) any liability of Seller for unpaid Taxes of any Seller Entity, including Transfer Taxes required to be paid by the Seller pursuant to Section 6.4(a) and Property Taxes for which the Seller is responsible pursuant to Section 6.4(b) and Section 6.4(c), but excluding Transfer Taxes required to be paid by the Buyer pursuant to Section 6.4(a) and Property Taxes for which the Buyer is responsible pursuant to Section 6.4(b) and Section 6.4(c), (ii) any Taxes of another Person under for which any Seller Entity is liable, including Taxes for which any Seller Entity is liable by reason of Treasury Regulation section Section 1.1502-6 (or any comparable or similar provision of federal, state, local, local or foreign law) Law), as a transferee or successor, by contract under any contractual obligation or otherwiseotherwise (other than Taxes of other Persons for which any Seller Entity is liable pursuant to Assumed Contracts), except for and (iii) any Taxes resulting from the sale of the Acquired Assets pursuant to this Agreement (other than Transfer Taxes for which the Buyer is expressly liable responsible pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing6.4(a)); (e) except as otherwise expressly provided (i) any Taxes arising out of, related to, or in Section 7.10, any liabilities under connection with the Acquired Assets or relating the Business that were incurred in or are attributable to any Benefit Plan at any time maintained, contributed taxable period (or portion thereof) ending on or prior to or the Closing Date other than Transfer Taxes required to be contributed paid by the Buyer pursuant to Section 6.4(a) and Property Taxes for which the Buyer is responsible pursuant to Section 6.4(b) and Section 6.4(c), and (ii) Taxes imposed on or with respect to the Excluded Assets or Excluded Liabilities for a taxable period; (f) all claims by and all Liabilities or obligations to or with respect to (i) any Business Employees (and any other employees or service providers of Seller or its Affiliates) who are not Transferred Employees or are otherwise not hired by the Buyer or any Affiliate of the Buyer, (ii) the Seller Benefit Plans (for the avoidance, including any equity-based awards granted by Seller or its Affiliates that are held by Business Employees as of the Closing), and all related agreements, including the funding arrangements (accounts, trusts, insurance agreements and policies, and stop loss policies) and administrative or other service agreements with third party providers, trusts or other assets attributable thereto; (iii) any other employee benefit or compensatory plan, program, contract or arrangement sponsored or maintained by Seller or its Affiliates, and (iv) the employer portion of any Taxes arising from the payments described in subsections (i) through (iii) above, but, in each case, subject to the compliance by the Buyer and their respective Affiliates with their respective obligations under Section 7.1; (g) any Transaction Expenses, including any Liabilities relating to legal, accounting, financial advisory, investment banking or other professional services performed in connection with the Transactions (which, for the avoidance of doubt, shall not include any Transaction Expenses of the Buyer or any of its Affiliates, all of which shall be the sole obligation of the Buyer or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s its respective Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan); (fh) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in all Liabilities of the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller Entities arising under out of, related to, or in connection with this Agreement, Agreement and the other Transaction Documents; (i) intercompany payables among any certificate or other document delivered in connection herewith, Seller Entity and any of its Affiliates; (j) any Seller Pre-Closing Environmental Liabilities; (k) any Liabilities relating to or in connection with any Action pending as of the transactions contemplated hereby Closing Date (including the Actions described on Schedule 2.4(k) but excluding any matters described in Section 2.4(l)), (l) any Liabilities arising from any infringement, misappropriation or violation by any Seller Entity of any Intellectual Property of any Person to the extent related to the Business and therebyoccurring prior to the Closing (excluding, for avoidance of doubt, any infringement, misappropriation or other violation occurring during the period after the Closing, any Liabilities for which shall be the responsibility of the Buyer and constitute Assumed Liabilities), subject to the provisions set forth in Schedule 10.1(d); (m) subject to the Buyer’s obligations under Section 7.1, any Liabilities (i) relating to any transaction, change in control, or retention arrangements and agreements between the Seller Entities or their respective Affiliates and any Business Employee (including any Transferred Employee), including the retention agreements scheduled on Schedule 2.4(m) (collectively the “Retention Agreements”); (ii) for severance amounts paid, payable or otherwise owing to any employee or other service provider of the Seller Entities who does not become a Transferred Employee or, except as set forth in Section 7.1, that is otherwise triggered in connection with the Transactions, including, for the avoidance of doubt, severance in respect of the persons set forth on Schedule 2.4(m); and (iii) for the employer portion of any Taxes arising from the payments described in subsections (i) and (ii) above; (n) the PTO balance, if any, consistent with the applicable Seller Entity’s paid time off policy of each Transferred Employee in excess of [***] hours as of the applicable Employee Transfer Date; (o) all Liabilities associated with cash incentive or commission opportunities with respect to each Transferred Employee with respect to any performance period (or portion thereof) prior to or as of the applicable Employee Transfer Date, including the employer portion of any Taxes arising therefrom; and (p) any Liabilities associated with the matter set forth on Schedule 2.4(p).

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Neither Parent nor Purchaser Sub is assuming or agreeing to pay, perform or otherwise discharge any other Liability, whether absolute or contingent, ▇▇▇▇▇▇ or inchoate, liquidated or unliquidated, or otherwise, other than solely with respect to Purchaser Sub, the Assumed Obligations Liabilities and Seller shall retain all such other liabilities Liabilities of the Company and obligationsits Affiliates, including (collectivelythe following, the shall be referred to as “Excluded Liabilities”):, and all Excluded Liabilities shall be retained by the Company or the other Persons liable for such obligations: (a) any liabilities Liabilities in respect of Taxes for which the Company or obligations any of Seller its Affiliates is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4, any Liabilities of the extent related Company or its Affiliates for Taxes, and any Liabilities in respect of payments required to be made after the Closing Date under any Excluded AssetsTax sharing, Tax indemnity, Tax allocation or similar contracts to which the Company, its Affiliates or any of the Purchased Assets was obligated, or was a party, on or prior to Closing; (b) any liabilities or obligations of Seller Company Expenses other than payments made in respect of Indebtednessthe Retention Program in an amount not to exceed $25 million; (c) any liabilities indebtedness of the Company or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8its Affiliates; (d) any obligations Liabilities in respect of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay Excluded Assets and any Liabilities to the extent attributable not relating to the period prior to the Effective Time or which may become payable as a result of the ClosingPurchased Assets; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or all Liabilities pursuant to the WARN Act arising prior to the Closing Date and all Liabilities (other than the Assumed Employee Liabilities) relating to or arising out of any Benefit Plan at compensation, employee benefits, accrued vacation or paid time off, deferred compensation, pension or retirement plans, the CBAs or other programs, policies, procedures or other arrangements of any time maintainedtype or description, including for this purpose any benefits provided or available to current or former employees, dependents of employees or former employees, independent contractors or any other person, which are maintained or contributed to (or required to be formerly maintained or contributed to to) by Seller or any of its Affiliates, or under which Seller the Company or any Affiliate or former Affiliate of the Company, or to which the Company or its Affiliates or former Affiliates has or may incur liabilityformerly had any obligation to contribute or provide benefits, however maintained, funded or any contributionssponsored, benefits whether or liabilities therefornot legally binding or subject to ERISA, whether providing individual or any liability with respect to Seller’s a group coverage, and whether written or any of Seller’s Affiliate’s withdrawal unwritten, funded or partial withdrawal from unfunded, insured or termination of any Benefit Planself-insured; (f) except for the Recoverable Assumed Employee Liabilities, any liabilities Liabilities relating to (i) any Transferred Employee to the extent arising on or obligations arising from prior to the Closing (or the applicable Subsequent Closing, Distribution Center Closing or Inactive Employee Transfer Date), (ii) current or former employees of the Company or any Claim of its Affiliates who are not Transferred Employees or (iii) the incurrence or triggering of any withdrawal liability and/or funding obligation under ERISA by the Company or any of its ERISA Affiliates (including any workers’ compensation claimcontingent or secondary withdrawal liability) involving to any multiemployer plan (within the Purchased Assets meaning of Section 3(37) of ERISA) to which the Company or any of its ERISA Affiliates contribute or has ever had an obligation to contribute or with respect to which the Business filed Company or arising from an Actionable Incident occurring prior any of its ERISA Affiliates has borne any liability (a “Multiemployer Plan”), and any withdrawal liability and/or funding obligation incurred by Purchaser Sub or any of its ERISA Affiliates on or after the Closing with respect to any Multiemployer Plan to the Effective Time, including extent that such withdrawal liability and/or funding obligation relates to the Company’s or any of its ERISA Affiliates’ contribution history with respect to such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andMultiemployer Plan; (g) any (i) Liabilities arising out of the ownership or operation of the Purchased Assets prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing) or any Proceeding related to or arising out of any occurrence or event happening prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing), in each case other than to the extent included in the Assumed Pre-Closing Liabilities, (ii) Liabilities arising under any Environmental Law or regarding any Hazardous Materials to the extent arising from, related to, or resulting from the ownership or operation of the Purchased Assets other than to the extent (A) included in the Assumed Pre-Closing Liabilities or (B) arising from events or conditions first occurring or existing after the Closing (or the applicable Subsequent Closing or Distribution Center Closing), (iii) 1199SEIU Liabilities other than to the extent included in the Assumed Pre-Closing Liabilities or (iv) other than payments made in respect of the Retention Program in an amount not to exceed $25 million, Liabilities arising from the conduct, whether before, at or after the Closing, of the business of the Company other than the operation of the Acquired Stores, Distribution Centers and the Purchased Assets; (h) any Liabilities related to the Company’s Wellness+ and Plenti programs other than as set forth in Section 1.3(b) above; (i) any Liabilities of the Company for intercompany loans or payables to any Affiliates of the Company (including any payables and other liabilities or obligations of Seller arising under the Company or in connection its Affiliates with this Agreement, respect to the Acquired Stores owed to any certificate other business unit of the Company or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyCompany’s Affiliates); and (j) any Liabilities of the Company reserved for, or required by GAAP to be reserved for, on the balance sheet of the Company as of the Closing, except to the extent specifically set forth in Section 1.3 of this Agreement.

Excluded Liabilities. Seller acknowledges that Neither Buyer nor any of its Affiliates shall assume any Liabilities of the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Retained Companies (collectivelysuch unassumed Liabilities, the “Excluded Liabilities”):) other than those specifically set forth in Section 2.3. Without limiting the generality of the foregoing, in no event shall Buyer or any of its Affiliates assume or incur any Liability in respect of, and the Retained Companies shall remain bound by and liable for, and shall pay, discharge or perform when due, the following Liabilities of the Retained Companies: (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; all Liabilities for Taxes that are not Assumed Liabilities, including, but not limited to, (bi) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid all Taxes of any Person Retained Company or any Affiliate thereof (including for the avoidance of doubt, Taxes imposed or borne under Treasury Regulation section Section 1.1502-6 of the Treasury Regulations (or any similar provision of U.S. state, local, or foreign law) Law), as a transferee or successor, by contract or otherwise), except for (ii) all Taxes for which Buyer is expressly liable and other amounts that are the responsibility of Seller pursuant to Section 3.4 7.3(a), (iii) all Taxes that are the responsibility of Seller and its Affiliates pursuant to Section 7.3(c)(i), (iv) all Taxes imposed on or Section 7.8with respect to the ownership or operation of the Excluded Assets or that are attributable to any asset or business of the Company that is not part of the Purchased Assets, and (v) any amount in respect of claims asserted against Buyer or its Affiliates, the Business or the Purchased Assets by reason of failure to comply with any withholding or similar Tax Laws or any bulk sales, bulk transfer or similar Laws; (b) all Liabilities in respect of the Excluded Contracts and other Excluded Assets; (c) all product Liability and similar claims for damages or injury to person or property, or claims of infringement of Intellectual Property Rights, regardless of when made or asserted, which arise out of or are based upon any events occurring or actions taken or omitted to be taken by any member of the Seller Group, or otherwise arising out of or incurred in connection with the conduct of the Business, on or before the Closing Date; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay all warranty claims to the extent attributable to reserves for such claims are not accrued expenses of the period prior to Business created in the Effective Time or which may become payable ordinary course of business consistent with past practice as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planall Pre-Closing Environmental Liabilities; (f) all Indebtedness of the Business; (g) all Liabilities under the Retained Benefit Plans, except as determined otherwise under applicable Law or as provided under Section 7.2; (h) all Liabilities in connection with the Seller Employees, except as determined otherwise under applicable Law or as provided under Section 7.2; (i) any trade accounts payable of the Seller Group which constitute intercompany payables owing to other members of the Seller Group; (j) all Liabilities arising out of or incurred in connection with violations of or investigations regarding violations of the Foreign Corrupt Practices Act of 1977, the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, or any other applicable Law of similar effect in any jurisdiction in the ownership or operation of the Business, including Laws implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; (k) all Liabilities arising out of or incurred in connection with violations of or investigations regarding violations of any Health Care Laws or any Law pertaining to any Health Care Program; (l) all Liabilities in respect of Assigned Contracts not assumed pursuant to Section 2.3(a); (m) all Liabilities of Scient’x S.A.S. and Surgiview, except for Liabilities in connection with the Recoverable LiabilitiesFrench Distribution Agreements, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving but only to the Purchased Assets or extent that such Liabilities in connection with the French Distribution Agreements were incurred in the ordinary course of the Business filed and do not relate to any failure to perform, improper performance, warranty or arising from an Actionable Incident occurring other breach, default or violation by any member of the Seller Group on or prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesClosing; and (gn) any liabilities except as otherwise provided in this Agreement, all Liabilities arising out of or obligations of Seller arising under or incurred in connection with the negotiation, preparation and execution of this Agreement, any certificate or other document delivered in connection herewith, Agreement and any the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, including Taxes and fees and expenses of counsel, accountants and other experts.

Excluded Liabilities. Seller acknowledges that Notwithstanding anything to the sole liabilities and obligations being assumed by Buyer are contrary set forth in Section 2.2(a), other than the Assumed Obligations Liabilities, neither Purchaser nor any of its Subsidiaries will assume or be bound by any Liability, duty or obligation of any of the Seller Entities or any of their respective Affiliates, and the Seller Entities and their respective Affiliates shall retain all Liabilities, duties and obligations other liabilities and obligations, including than the Assumed Liabilities (collectively, the “Excluded Liabilities”):), including, by way of example only, the following Liabilities of the Seller Entities and their respective Affiliates: (a1) any liabilities Liability, duty or obligations obligation of any of the Seller Entities or their respective Affiliates of any nature whatsoever, whether accrued, absolute, primary or secondary, contingent or otherwise, direct or indirect, asserted or unasserted, known or unknown, that is primarily related to the Retained Business; (2) any Liability, duty or obligation of any of the Seller Entities or their respective Affiliates of any nature whatsoever, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, to the extent related relating to or arising from or in connection with any Excluded AssetsAsset; (b3) any liabilities or obligations of Seller in respect of Indebtednessthe Excluded Deposits; (c4) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8the One HSBC Center Lease; (d5) any obligations compensation or benefit Liabilities to Business Employees or Affiliated Employees with respect to services provided to Seller or its Affiliates prior to the Closing Date (including, without limitation, all liabilities for accrued but unused paid time off) and any Liabilities under the Employee Plans, incurred prior to the Closing Date, whether or not such claims are submitted for payment or reimbursement on or before the Closing Date, except to the extent otherwise provided under Section 9.1; (6) any Controlled Group Liability arising under any Employee Plan or any employee benefit plan sponsored, maintained or contributed to or by any current or former ERISA Affiliate of the Seller Entities or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedulestheir respective Subsidiaries; and (g7) any liabilities liability for Excluded Taxes (whether or obligations not relating to the Transferred Business). Notwithstanding anything in Section 13.9 to the contrary, in no event shall Article XIII limit the retention by the Seller Entities of Excluded Liabilities as between Purchaser and the Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyEntities.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations Liabilities, Purchaser (and the Purchaser Affiliate) shall not assume and shall not be liable or responsible for any Liability of Seller, any direct or indirect subsidiary of Seller shall retain all (each, a “Subsidiary”) or any other liabilities and obligationsAffiliate of Seller, including other than the Purchased Subsidiary (collectively, the “Excluded Liabilities”):). Without limiting the foregoing, Purchaser (and the Purchaser Affiliate) shall not be obligated to assume, and does not assume, and hereby disclaims any of the following Liabilities of Seller, its Subsidiaries or its Affiliates: (a) any liabilities or obligations of Seller to the extent related Any Liability attributable to any Excluded assets, properties or Contracts not included in the Purchased Assets, except Liabilities attributable to Non-Assignable Assets (for which Seller and Purchaser have reached a mutually acceptable arrangement pursuant to Section 1.5(b)); (b) Any Liability for breaches of any liabilities Seller Contract on or obligations of Seller in respect of Indebtednessprior to the Closing Date; (c) any liabilities or obligations in respect of Taxes Any Liability for accounts payable of Seller on or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant prior to Section 3.4 or Section 7.8the Closing Date; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except Except as otherwise expressly specifically provided in Section 7.1012 or as may be required under the Real Property Lease, any liabilities under or relating to any Benefit Plan at any time maintained, contributed Liability for Taxes attributable to or required to be contributed to by imposed upon Seller or any of its Affiliates, or under which Seller attributable to or imposed upon the Business or the Purchased Assets for any Affiliate has Pre-Closing Period; (e) Any Liability for or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s any loan, or other indebtedness for borrowed money, including any such Liabilities owed to Affiliates of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations Any Liability arising from accidents, occurrences, misconduct, negligence, breach of fiduciary duty or statements made or omitted to be made (including libelous or defamatory statements) on or prior to the Closing Date, whether or not covered by workers’ compensation or other forms of insurance; (g) Any Liability arising as a result of any Claim legal or equitable action or judicial or administrative proceeding initiated at any time, to the extent related to any action or omission on or prior to the Closing Date, including any Liability for (i) infringement or misappropriation of any Intellectual Property Rights or any other rights of any Person (including any workers’ compensation claimright of privacy or publicity); (ii) involving breach of product warranties (which shall not include repairs, fixes or replacements in the ordinary course of business); (iii) injury, death, property damage or other losses arising with respect to or caused by Seller Products or the manufacturer or design thereof; or (iv) violations of any Legal Requirements (including federal and state securities laws); (h) Any Liability arising out of any Employee Benefit Plans or any contract of insurance for employee group medical, dental or life insurance plans; (i) Any Liability under any Contract with an Employee or Consultant of Seller incurred as of or prior to the Closing; (j) Any Liability for making payments of any kind to Employees (including as a result of the Transaction, the termination of an employee by Seller, wages, stock options, accrued vacation or sick pay, or other claims arising out of the terms of employment with Seller), or with respect to payroll taxes relating to any Pre-Closing Period; (k) Except as otherwise set forth in this Agreement, any Liability (i) incurred in connection with the making or performance of this Agreement and the Transaction or (ii) related to or arising from the acquisition of the Business by Purchaser; (l) Any costs or expenses incurred in connection with shutting down, de-installing and removing equipment not purchased by Purchaser and any costs or expenses associated with any Contracts not assumed by Purchaser hereunder; (m) Except as otherwise set forth in this Agreement, any Liability for expenses and fees incurred by Seller incidental to the preparation of the Transaction Agreements, preparation or delivery of materials or information requested by Purchaser, and the consummation of the Transaction, including all broker, counsel and accounting fees; (n) Any Legal Requirement applicable to Seller, the Purchased Assets or the Business filed Assumed Liabilities on or arising from an Actionable Incident occurring prior to the Effective TimeClosing Date, including or any Liability of Seller for a violation of such Claims a Legal Requirement that occurred on or Actionable Incidents disclosed in prior to the Seller Disclosure SchedulesClosing; and (go) Any Liability to any liabilities or obligations stockholder of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebySeller.

Excluded Liabilities. Notwithstanding Section 2.3 or any other provision in any Transaction Document to the contrary, Buyer shall not assume and shall not be responsible to pay, perform, or discharge any Liabilities of any Seller acknowledges that Party or relating to the sole liabilities and obligations being assumed by Buyer are Business or any of any Seller's assets of any kind or nature whatsoever, other than the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Liabilities (collectively, the “"Excluded Liabilities”):"). Sellers shall be jointly and severally liable for the full payment and discharge of all Excluded Liabilities as and when due. The Excluded Liabilities include: (a) except as set forth in Section 2.12 below, any liabilities Liability for (i) Taxes of any Seller (or obligations any shareholder or Affiliate of Seller any Seller) or relating to the extent related Business, the Assets, or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated by this Agreement or that are the responsibility of any Seller pursuant to this Agreement or any Excluded Assetsother Transaction Document; or (iii) other Taxes of any Seller (or any shareholder or Affiliate of any Seller) of any kind or description, including any Liability for Taxes of any Seller (or any shareholder or Affiliate of any Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of Contract or Law; (b) except as set forth in Section 2.3(a)(i) above and Section 7.24 below, any liabilities Liability in any way related to salaries, wages, sick pay, vacation pay, severance pay, savings plans, gain-sharing plans, severance, termination benefits, deferred compensation, pension, profit sharing, retirement, health, dental, or other Benefit Plans, including any employee pension benefit plan or any other obligations for the benefit of any current or former personnel (including any employee, officer, director, retiree, independent contractor, or consultant) of any Seller Party, arising out of the employment or engagement of such personnel (with respect to employees hired by Buyer pursuant to Section 7.11 below, until the Effective Time, and with respect to all other employees, at any time) or the termination of the employment or engagement of any such personnel by a Seller Party upon or in respect of Indebtednessconnection with the Closing; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Indebtedness; (d) except as set forth in Section 2.3(a)(i) above, any obligations Liability to any Affiliate of any Seller Party (including for any intercompany transactions), including any current or former shareholder and/or any Insider; (e) any Liability pursuant to or with respect to any Contract, except as may be expressly and specifically included within the Assumed Liabilities; (f) any Liability arising under any arbitration or litigation proceeding, whether or not disclosed in this Agreement; (g) except as set forth in Section 2.3(a)(i) above, the current portion of any other Liability required by GAAP to be recorded as a long-term liability; (h) any Liability related to any Seller Party's operations or activities, whether before or after Closing, except to the extent included within the Assumed Liabilities; (i) any Liabilities of any Seller or the Representative arising or incurred in connection with the negotiation, preparation, investigation, and performance of the Transaction Documents and the transactions contemplated by the Transaction Documents, including fees and expenses of counsel, accountants, consultants, advisers, and others; (j) any Liabilities relating to or arising out of the Excluded Assets; (k) except to the extent set forth in Section 2.3(a)(iii), any Liabilities in respect of any pending or threatened Action arising out of, relating to, or otherwise in respect of the operation of the Business or the Assets to the extent such Action relates to such operation prior to the Closing Date; (l) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances, or conditions existing prior to the Closing Date; (m) any accounts payable of any Seller that are not included within the Closing Net Working Capital calculation; (n) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders, or work orders that (i) do not constitute part of the Assets issued by the Business' customers to any Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement; (o) except to the extent set forth in Section 2.3(a)(i) above, any Liabilities to indemnify, reimburse, or advance amounts to any present or former officer, director, employee, or agent of any Seller Party (including with respect to any breach of fiduciary obligations); (p) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) that are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) that do not conform to the representations and warranties with respect to such Contracts contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by any Seller Party of such Contracts prior to Closing; (q) any Liabilities arising out of, in respect of, or in connection with the failure by any Seller Party or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, to comply with any Law or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesGovernmental Order; and (gr) any liabilities or obligations of Seller arising under or except to the extent set forth in connection with this AgreementSection 2.3(a)(v) above, any certificate product Liability or similar claim for injury to a Person or property by reason of the improper performance or malfunctioning of a product; improper design or manufacture; improper warnings to any users of Product (whether in written instructional materials, located on the product, in marketing literature or otherwise); improper or deficient training of users of the products or other document delivered product defects of any products manufactured, assembled or sold (or leased or otherwise used by any Person with the consent of a Seller) by any Seller at any time prior to the Closing Date (in connection herewitheach instance whether such liability arises under theories of negligence, and any of the transactions contemplated hereby and therebystrict liability, bailment and/or otherwise).

Excluded Liabilities. The Seller acknowledges and the Buyer expressly understand and agree that, other than the Assumed Liabilities, Buyer shall not assume, pay, perform or discharge or become liable for any and all obligations, commitments or liabilities of any and every nature whatsoever of the Seller including (without limitation) all obligations, commitments or liabilities (whether recourse or non-recourse to the Seller) which relate to, are secured by or otherwise encumber any of the Purchased Assets, including, without limitation: (a) all liabilities associated with the Real Property including, without limitation, any mortgage thereon; (b) liabilities resulting from Environmental Claims relating to the operation of the Business prior to the Closing; (c) claims arising prior to Closing that the sole liabilities and obligations being assumed operation of the Business infringes the Intellectual Property Rights of any Person, except as otherwise set forth herein; (d) any liability or obligation arising out of any claim of or for injury to persons or property by Buyer are reason of the Assumed Obligations and improper performance or malfunctioning, improper design or manufacture, or failure to adequately package, label or provide warnings as to the hazards of, any product of the Business, where the injury giving rise to such claim occurred on or prior to the Closing Date; (e) any obligation to any Affiliates of the Seller shall retain all including any obligation to Stanford Financial Group or any of its Affiliates; (f) any liability of the Seller to any plan, individual or governmental agency arising out of any failure of the Seller to comply with the applicable provisions of any Employee Benefit Plans, ERISA, the Code, or other liabilities and obligationsapplicable Laws with respect to its employees, including any obligation or liability of the Seller for any penalty, fine or similar amount due from the Seller on account of any breach of fiduciary duty or failure to comply with applicable laws or regulations; (g) any liability for severance pay, leaving allowances, guaranteed fixed terms of employment or retirement benefits beyond those provided under applicable law, collective bargaining agreements, or any Employee Benefit Plan applicable to employees of the Business generally, which arises out of any acts or omissions of Sellers prior to the Closing Date; and (h) all liabilities of Seller or any Affiliate of Seller for Taxes which are not Assumed Liabilities as set forth in Schedule 1.5(h) hereto (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby).

Excluded Liabilities. Except as expressly set forth in Section 2(d) or 2(f), the Buyer shall not assume or be responsible at any time for any Liability of the Seller, including, but not limited to, any Liabilities, obligations, debts, or commitments of the Seller arising out of any action taken by the Seller prior to, or incurred prior to, the Closing, or incident to, arising out of or incurred with respect to, this Agreement and the transactions contemplated hereby, and the Seller expressly acknowledges and agrees that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain retain, and that the Buyer shall not assume or otherwise be obligated to pay, perform, defend, or discharge (for example and not by way of limitation) (i) any Liability of the Seller for Taxes other than Taxes expressly set forth in Section 2(f); (ii) any Liability of the Seller in connection with any Employee Benefit Plan; (iii) any Liability of the Seller or prior owner(s) of the Premises under any Environmental, Health, and Safety Laws related to or arising from ownership, use of, or operations at, the Premises through the Closing; (iv) any product liability pertaining to products sold, leased, rented, or manufactured prior to the Closing; (v) any obligations to the Seller’s present or previous employees and all Liabilities relating to the Seller’s employment practices; (vi) any Liability for workers’ compensation or other liabilities claims related to incidents, injuries, illnesses, or property damage that occur prior to the Closing; (vii) except as set forth in Section 7(e), any Liability, obligations or fiduciary duties associated with the Seller’s 401(k) plan; (x) any Liability or obligation associated with the Consulting Agreement by and obligationsbetween the Seller and ▇▇▇▇ ▇▇▇▇▇▇▇ dated February 4, including 2003, (ix) the Seller’s reserve account with the State of California Employment Development Department; and (x) any Liability or obligation associated with stock options outstanding under the Seller’s 1994 Incentive Stock Option Plan, as amended (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of ). The Seller further agrees to satisfy and discharge as the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may same shall become payable as a result due all Liabilities of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to Seller not specifically assumed by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyBuyer hereunder.

Excluded Liabilities. Seller acknowledges that Notwithstanding Section 2.3, Purchaser will not assume or be liable for any of the sole Liabilities of the Sellers and their Subsidiaries, except for the Assumed Liabilities (all such liabilities and obligations not being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, herein referred to as the “Excluded Liabilities”):), including: (a) all obligations for outstanding indebtedness for borrowed money of the Sellers or any liabilities or obligations of Seller to the extent related to any Excluded Assetstheir Affiliates; (b) any liabilities or obligations of Seller in respect of Indebtedness; (ci) any liabilities or obligations in respect of all Liabilities relating to income Taxes of Seller imposed on the Sellers or any Tax Affiliate of Sellertheir Affiliates (or for which the Sellers or any of their Affiliates may otherwise be liable), including as a transferee, successor, or by contract, without regard to whether such Taxes relate to periods (or portions thereof) ending on or prior to the Closing Date, (ii) all Asset Taxes for which the Sellers are liable pursuant to Section 7.3(c), (iii) all Transfer Taxes for which the Sellers are liable pursuant to Section 2.9, (iv) all VAT for which Sellers are liable pursuant to Section 7.3(h), and (v) all Liabilities of the Sellers or any liability of Seller their Affiliates relating to the payment for unpaid the income Taxes of any Person under Treasury Regulation section Regulations Section 1.1502-6 (or any similar provision of stateapplicable Law); (c) all Liabilities arising out of, localrelating to or resulting from any Seller Benefit Plan, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8whenever incurred; (d) any obligations all Liabilities arising out of Seller or any of its Affiliates for wagesrelated to the Business or Transferred Assets that were incurred, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementarose, or retention relate to the Business or severance pay Transferred Assets prior to the Closing Date, except to the extent attributable to the period prior to the Effective Time or which may become payable such Liabilities are expressly assumed under Section 2.3; (e) Liabilities incurred for earned but unused paid time-off benefits as a result of the Closing; (ef) except as otherwise expressly provided in Section 7.10, any liabilities under Liabilities arising out of or relating to any Benefit Plan at action, charge, claim (including any time maintainedcross-claim or counter-claim), contributed suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit examination or investigation; (g) all Liabilities, whether accruing before, on or after the Closing Date, (A) relating in any way to the environment, natural resources, or human health and safety, or arising under Environmental Laws in connection with the ownership or operation of the Business (including the Transferred Assets) on or before the Closing Date, including those related to (x) the Release or threatened Release of, or exposure to, a Hazardous Substance at, on, under, to or required from any Leased Real Property occurring or existing on or before the Closing Date (including, for the avoidance of doubt, any off-site migration of Hazardous Substances), (y) any non-compliance with or violation of any Environmental Law on or before the Closing Date, or (z) any disposal, transportation or arrangement for transportation or disposal prior to be contributed Closing of any Hazardous Substance sent to any third party property for treatment, storage, recycling, incineration or disposal, or (B) relating to the use, application, malfunction, defect, design, operation, performance or suitability of any product of the Business sold or distributed prior to the Closing by, or service of the Business rendered prior to the Closing by Seller or on behalf of, the Sellers or any of its Affiliates, or under which Seller or their Subsidiaries to any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim Person (including any workers’ compensation claim) involving products for which a current or future owner or operator of the Purchased Transferred Assets or the Business filed may be alleged to be responsible as a matter of Law, contract or otherwise); (h) all Liabilities arising out of, relating to or resulting from an Actionable Incident occurring the employment or engagement or termination of employment or engagement of any current or former employees or individual service providers, contractors or consultants of the Sellers or their Subsidiaries incurred prior to Closing; (i) all Liabilities arising out of, relating to or resulting from the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesExcluded Assets; and (gj) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or all other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyLiabilities listed on Schedule 2.4(j).

Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, neither Buyer nor any Affiliate of Buyer (including the Buyer Designees) shall assume or have any obligation or liability for any of the liability or obligation of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are of any nature which is not specifically included in the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Liabilities (collectively, the “Excluded Liabilities”):). Without limiting the generality of the foregoing, the Assumed Liabilities do not include: (ai) any liabilities liability or obligations of obligation for any Tax imposed on Seller to the extent related to or any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes Affiliate of Seller or any Tax member of any Affiliated Group of which Seller or any Affiliate of SellerSeller is or was a member, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) except to the extent accrued as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8current liability in the Final Closing Statement; (dii) liabilities and obligations for personal injury or property damage relating to products manufactured by the Business in the United States to the extent the date of occurrence is on or prior to the Effective Time; (iii) any obligations claim, obligation or liability arising from or relating to any Excluded Asset; (iv) any Indebtedness of Seller or its Affiliates for borrowed money or otherwise evidenced by a note, bond, debenture or similar instrument; (v) any fees, costs and expenses that have been incurred or that are incurred by Seller or its Affiliates in connection with the consummation of the transactions contemplated by this Agreement; (vi) any obligation or liability of the Business in favor of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, pursuant to any agreements or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable binding arrangements in effect as a result of the Closing; (evii) except as otherwise expressly provided in Section 7.10, any liabilities under obligation of Seller or any Affiliate arising out of this Agreement or any Transaction Document; (viii) any obligation or liability arising out of or relating to any Employee Benefit Plan at (for the avoidance of doubt, this does not include Employee Benefit Plans maintained by Acquired Companies or the Assumed Employee Benefit Plan); (ix) any time maintained, contributed liability or obligation for personal injury or property damage occurring or alleged to or required have occurred prior to be contributed the Closing in the United States; and (x) any liability arising out of relating to by Seller or any business of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for other than the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyBusiness.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are The Parties agree that, except for the Assumed Obligations and Seller shall retain all Liabilities, Buyer will not assume or be responsible for the payment or assumption of any other liabilities and obligationsor obligations of any kind of Seller, including Parent, any other Seller Affiliate or the Business (collectively, the “Excluded Liabilities”):), including any and all liabilities and obligations relating to: (a) all benefit plans of Seller, Parent or any Seller Affiliate; (b) any current or former employees, directors, or officers of Seller, Parent, any other Seller Affiliate or the Business; (c) the Excluded Taxes; (d) any Indebtedness of Seller, Parent or any other Seller Affiliate; (e) all Actions relating to or involving Seller, Parent, any other Seller Affiliate, the Acquired Assets or the Business, existing on or prior to the Closing Date, and all Actions with respect to Seller's, Parent's or any other Seller Affiliate's conduct of its business on or after the Closing Date; (f) any liabilities or obligations of Seller the Business, on the one hand, owed to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller Seller, Parent or any Tax Affiliate of Sellerother Seller Affiliate, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8on the other hand; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities obligations for indemnification owed to Bard Access Systems, Inc. by Seller, Parent or obligations of any other Seller arising Affiliate under or in connection with this that certain Asset Purchase Agreement, any certificate or other document delivered in connection herewithdated as of September 4, 2009; and (h) all liabilities with respect to the Excluded Assets. The Excluded Liabilities are, and any shall at all times remain, the liabilities of Seller, Parent and the Seller Affiliates. Seller and Parent hereby covenant to discharge in full in a timely manner all of the transactions contemplated hereby and therebyExcluded Liabilities.

Excluded Liabilities. Seller acknowledges that The Purchaser expressly does not, and shall not, assume, be deemed to assume, or be obligated to pay, perform or otherwise discharge any liability, obligation, or commitment of Seller, the sole shareholders of the Seller, or their Affiliates, direct or indirect, known or unknown, absolute or contingent, not specifically identified as an Assumed Liability (all such liabilities and obligations not being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, being herein called the “Excluded Liabilities”):) and, notwithstanding anything to the contrary in Section 2.3, none of the following shall be Assumed Liabilities for purposes of this Agreement: (a) any all costs and expenses incurred by Seller or the Principal Shareholders incident to their negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein; (b) all liabilities or obligations in respect of Seller to the extent related to any Excluded Assets; (bc) any all other liabilities or obligations of Seller in respect of Indebtednessthe Seller, except for the Current Liabilities, the Other Liabilities, and the liabilities and obligations assumed pursuant to Section 2.3(d); (cd) any all liabilities or obligations in respect of Taxes (whether imposed on the Seller, shareholders of Seller or any Tax Affiliate of the Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (their Affiliates) arising with respect to the Business or similar provision of state, localthe Purchased Assets on or before the Closing Date, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations the sale of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay the Purchased Assets to the extent attributable to the period prior to the Effective Time Purchaser, including sales or which may other transfer Tax, whenever such Taxes become payable as a result of the Closingdue or payable; (e) except as otherwise expressly provided in Section 7.10all liabilities and obligations, any liabilities under or relating to any Benefit Plan at any time maintainedincluding damages, contributed to or required to be contributed to by Seller or any of its Affiliatesfines, or under which Seller or any Affiliate has or may incur liabilityand penalties, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s pending or any of Seller’s Affiliate’s withdrawal threatened litigation, suits, claims, demands, or partial withdrawal investigations or proceedings by Governmental Authorities to the extent they relate to or arise from occurrences, actions, or termination of any Benefit Plannon-actions prior to the Closing Date; (f) except for the Recoverable Liabilities, any all liabilities or obligations imposed by Applicable Law or associated with, arising out of or arising from (i) noncompliance by the Seller with any Claim Applicable Law, including, but not limited to, those relating to employment practices and Environmental and Safety Requirements prior to the Closing Date, (ii) the occupancy, operation, use or control of any of the business property of the Seller prior to the Closing Date, or (iii) the operation of the Business prior to the Closing Date; (g) all claims, demands, liabilities, obligations, or litigation of any nature whatsoever arising out of or based upon events occurring or conditions existing on or before the Closing Date which relate to products sold or services performed by Seller on or before the Closing Date or any other action or inaction of Seller, whether founded upon negligence, breach of warranty, strict liability in tort and/or other legal theory seeking compensation or recovery for or relating to injury to persons or damage to property, notwithstanding that the date on which the injury, claim, demand, liability, or obligation was or is either before or after the Closing Date, other than a claim or liability included as an Assumed Liability; (h) all claims, demands, obligations or liabilities, including any the cost and expenses of defense thereof, whether arising out of, based upon, or related to workers’ compensation claimor employer’s liability claims, negligence, strict liability in tort and/or other legal theory seeking compensation and/or recovery and arising out of injuries and occupational diseases sustained by employees of Seller on or before the Closing Date; (i) involving the Purchased Assets or the Business filed or all liabilities and obligations arising from an Actionable Incident occurring the breach or default by Seller, prior to the Effective TimeClosing Date, of any lease, contract, engagement, or commitment, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesLeases and the Material Agreements; (j) all wages, compensation, premiums for medical and health insurance, severance premiums, deferred compensation, profit-sharing, pension contributions, or other welfare or benefit programs relating to the employees of the Seller accruing or arising on or prior to the Closing Date; (k) all liabilities for compensation (including salaries, wages, and benefits) and claims for severance and for payments in lieu of notice of termination made by employees of Seller who are not employed by Purchaser as of the Closing Date, including, without limitation, by reason of Seller’s failure to comply with the Worker Adjustment and Restraining Notification Act (“WARN”), other than a liability included as an Assumed Liability; (l) all liabilities, debts, and obligations relating to any employee profit sharing plans and savings and stock ownership plans and pension or retirement plans, health, and other employee plans, including, without limitation, any defined benefit pension plan or 401(k) plan; and (gm) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, the Affiliate Payables and any of the transactions contemplated hereby and therebyFunded Indebtedness.

Excluded Liabilities. Seller acknowledges that Notwithstanding any provision in this Agreement to the sole liabilities contrary, Buyer shall not assume and obligations being assumed by Buyer are shall not be obligated to assume or be obliged to pay, perform, discharge or otherwise satisfy any Liability, Claim or Encumbrance of Sellers, and Sellers shall be solely and exclusively liable with respect to all Liabilities, Claims and Encumbrances of Sellers, other than the Assumed Obligations and Seller shall retain all Liabilities (such Liabilities other liabilities and obligationsthan Assumed Liabilities, including (collectively, the “Excluded Liabilities”):). Without limiting the foregoing, but subject to the last sentence of this Section 1.4, Excluded Liabilities shall include the following Liabilities of Sellers: (a) Liabilities which are not Assumed Liabilities, including but not limited to all accounts payable, accrued expenses, Taxes (except those at are the responsibility of Buyer under Section 7.1(b)), Claims asserted in litigation against any liabilities or Seller, obligations to Seller’s lenders, and other Liabilities not specifically set forth in Section 1.3 and any claims under sections 503 and 507 of Seller to the extent related to Bankruptcy Code; (b) Liabilities associated with any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) Liabilities associated with any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes and all indebtedness of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Seller; (d) any obligations Liabilities arising out of Seller or any of its Affiliates in connection with claims, litigation and proceedings (whether instituted prior to or after Closing) for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementacts or omissions that occurred, or retention or severance pay to the extent attributable to the period arise from events that occurred, prior to the Effective Time or which may become payable as a result of the ClosingClosing Date; (e) except penalties, fines, settlements, interest, costs and expenses arising out of or incurred as otherwise expressly provided in Section 7.10, a result of any liabilities under actual or relating to alleged violation by any Benefit Plan at Seller of any time maintained, contributed to Legal Requirement or required to be contributed to breach by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit PlanContract; (f) except as otherwise set forth in this Agreement, all Liabilities for the Recoverable Liabilities, Taxes of any liabilities nature; (g) Liabilities arising out of or obligations arising resulting from any Claim layoffs or termination of Employees by Seller at or prior to Closing (including without limitation all accrued and unpaid vacation, payroll taxes, related expenses, and/or the consummation of the Transactions sufficient in the aggregate to require notice under the WARN Act, as well as any workers’ compensation claimother Liabilities to any of Seller’s Employees under Seller’s employee stock option plan; (h) involving all Liabilities for expenses (i) relating to the Purchased Assets negotiation and preparation of this Agreement and (ii) relating to the Transactions, in each case to the extent incurred by Seller and including those related to legal counsel, accounting, brokerage and investment advisors fees and disbursements; (i) any Liability to DMS (other than pursuant to an Assumed Contract, if any, with DMS); (j) any Liability under any Assigned Lease and Interest or Contract that arises after the Business filed Closing but that arises out of or arising from an Actionable Incident occurring relates to any breach, occurrence or circumstance that occurred prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesClosing; and (gk) all Liabilities with respect to any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate Employee or other document delivered in connection herewithBenefit Plans. The parties hereto acknowledge that Buyer is not agreeing to assume any Liability of any Seller whether related to the Assets or otherwise, other than the Assumed Liabilities, and that nothing in this Agreement shall be construed as an agreement otherwise. For the avoidance of doubt, in the event of any conflict between the terms of Section 1.3 and this Section 1.4, the transactions contemplated hereby and therebyterms of Section 1.3 shall govern.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectivelyExcept as specifically provided in Section 2.2 hereof, the “Purchaser shall not be responsible for the payment of any liabilities of Seller, including, but not limited to, the following liabilities, contracts, commitments and other obligations of Seller (the "Excluded Liabilities”"): (a) Seller's obligations and any liabilities or obligations of Seller to the extent related to any Excluded Assetsarising under this Agreement; (b) any liabilities or obligations of Seller in respect for federal, state, local or foreign income tax liability, payroll, property and sales taxes (including interest and penalties) arising from the operations of IndebtednessSeller up to the date hereof or arising out of the sale by Seller of the Purchased Assets pursuant hereto; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes any transfer, sales or other taxes, fees or levies (including motor vehicle sales taxes) imposed by any state or other governmental entity on or arising out of any Person under Treasury Regulation section 1.1502-6 (or similar provision the sale of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable the Purchased Assets pursuant to Section 3.4 or Section 7.8hereto; (d) any obligations obligation of Seller or any for expenses incurred in connection with the sale of the Purchased Assets pursuant hereto, including without limitation the fees and expenses of its Affiliates for wagescounsel, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closingindependent auditors and financial advisors; (e) except as otherwise expressly provided any liability, contract, commitment or other obligation of Seller, known or unknown, fixed or contingent, the existence of which constitutes or will constitute a breach of any representation or warranty of Seller contained in Section 7.10or made pursuant to Article III of this Agreement; (f) any liability of Seller for any breach of contract, any liabilities under breach of warranty, malfeasance or relating to any Benefit Plan at any time maintainedmisfeasance, contributed to act of negligence or required to be contributed to intentional act by Seller or any of its Affiliates, or under which Seller employees or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination violation of any Benefit Planstatute regulation or other administrative rule of any governmental entity; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities liability of Seller for any damages arising out of any cause of action or obligations claim against Seller arising out of any act or failure to act of Seller which occurs prior to the date hereof, including without limitation, any liability of Seller arising under or in connection with this Agreementout of Lupo, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby.▇▇ al. v.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations Liabilities, Buyer shall not assume by virtue of this Agreement, the Assumption Agreement or any other Ancillary Agreement, or the transactions contemplated hereby or thereby, or otherwise, and shall have no liability for, any Liabilities of Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”):), including any of the following Liabilities: (a) any liabilities or obligations Liabilities of Seller in respect of any Excluded Assets or other assets of Seller that are not Purchased Assets, except to the extent related to any Excluded caused by the acts or omissions of Buyer or its Representatives or Buyer’s ownership, lease, maintenance or operation of the Purchased Assets; (b) any liabilities or obligations of Seller Liabilities in respect of IndebtednessTaxes attributable to the Purchased Assets for taxable periods ending before the Closing Date; (c) any liabilities Liabilities of Seller (i) arising from the breach or obligations default by Seller, prior to the Closing Date, of any Transferred Contract, Transferred Permit or Transferred Intellectual Property or (ii) in respect of Taxes of Seller any other contract, agreement, personal property lease, permit, license or any Tax Affiliate of other arrangement or instrument entered into by Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) subject to Section 3.03, any payment obligations of Seller Seller, including accounts or any of its Affiliates for wagesnotes payable, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period arising prior to the Effective Time or which may become payable as a result of the ClosingClosing Date; (e) except as otherwise expressly provided in Section 7.10, any liabilities under fines and penalties imposed by any Governmental Authority resulting from any act or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to omission by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect that occurred prior to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planthe Closing Date; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior income Taxes attributable to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andincome received by Seller; (g) any liabilities or obligations Liability of Seller arising under as a result of its execution and delivery of this Agreement or in connection with this any Ancillary Agreement, any certificate the performance of its obligations hereunder or other document delivered in connection herewiththereunder, and any or the consummation by Seller of the transactions contemplated hereby or thereby; and (h) any Liability of Seller based on Seller’s acts or omissions after the Closing; and (i) any and therebyall Environmental Liabilities and Tort Liabilities accruing, arising, existing or occurring prior to the Closing Date.

Excluded Liabilities. Seller acknowledges that Notwithstanding anything to the sole liabilities and obligations being assumed by contrary set forth in this Agreement, Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) not assume or be responsible for any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wagesof any kind, vacation payknown or unknown, contingent or otherwise, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementthan the Assumed Liabilities (all of such liabilities or obligations for which Buyer is not assuming any liability are referred to collectively herein as the "Excluded Liabilities"). The parties agree that the Excluded Liabilities shall be (1) any and all liabilities for Taxes of Seller or any of its Affiliates and any and all liabilities for Taxes in respect of, or retention relating to, the Business or severance pay the Transferred Assets for any Pre-Closing Period, (2) any and all liabilities arising out of or relating to (x) any Employee Benefit Plan not set forth on Schedule 11.5(b), and (y) any Employee Benefit Plan set forth on Schedule 11.5(b) to the extent attributable to the period prior to the Effective Time such liability or which may become payable obligation is accrued as a result of the Closing; Closing Date, but is not reserved for on the Closing Balance Sheet or otherwise matched by a dedicated asset for such purpose held by any such Employee Benefit Plan or reflected on the Closing Balance Sheet, (e3) except as otherwise expressly provided in Section 7.10any and all obligations, liabilities or responsibilities of Seller or any liabilities under of its Affiliates arising out of or relating to the breach by Seller or any Benefit Plan at any time maintained, contributed to or required to be contributed to by of its Affiliates of all indebtedness for borrowed money of Seller or any of its Affiliates, or under which Seller or (4) any Affiliate has or may incur liability, or any contributions, benefits obligations or liabilities therefor, or any liability with respect to Seller’s or any gross-payments pursuant to Section 2 of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; the Severance Agreement, dated August 4, 1998, between Menderes Akdag and Seller and (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g5) any liabilities obligations, liability or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyresponsibility set forth on Schedule 2.3 hereto.

Excluded Liabilities. Except as expressly assumed pursuant to Section 1.3, the Buyer is not assuming and shall not have any liability or obligation for any Liabilities of either Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including or any of its predecessors or Affiliates (collectively, the “Excluded Liabilities”):). Without limiting the generality of the foregoing, the Buyer shall not be deemed to assume any of the following Liabilities, all of which shall constitute Excluded Liabilities: (a) Liabilities arising under any liabilities written or obligations of oral Contract to which either Seller to is a party or by which either Seller or its assets or properties are otherwise subject or bound, other than Liabilities arising under the extent related to any Excluded AssetsAssigned Contracts or otherwise constituting Assumed Liabilities; (b) Liabilities of a Seller or any liabilities of its predecessors or obligations of Seller Affiliates in respect of Indebtednessany indebtedness for money borrowed, or Transaction Expenses of either Seller; (c) any liabilities or obligations in respect Liabilities of Taxes of a Seller or any Tax of its predecessors or Affiliates to any Affiliate or current or former stockholder or option holder of Seller, the Seller or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (its predecessors or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Affiliates; (d) any obligations Liabilities of a Seller or any of its predecessors or Affiliates for wages, vacation pay, other paid time off, employment or in respect of Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to except for Taxes arising from and after the extent attributable to Closing Date from the period prior to the Effective Time or which may become payable as a result operation of the ClosingBusiness and except as provided in Section 1.9 and Section 8.10; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Liabilities of a Seller or any of its Affiliatespredecessors or Affiliates to any present or former director, officer, employee, consultant or under which independent contractor of such Seller or any Affiliate has of its predecessors or may incur liabilityAffiliates, including Liabilities arising under any federal, state, local or any contributionsforeign Laws, benefits Approvals or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit PlanOrders; (f) Liabilities of a Seller or any of its predecessors or Affiliates for any Actions against a Seller or any of its predecessors or Affiliates, except for the Recoverable Liabilitiesany Action in respect to any Assumed Liability; (g) Liabilities of a Seller or any of its predecessors or Affiliates arising out of or resulting from any violation of or non-compliance by a Seller or any of its predecessors or Affiliates with any federal, state, local or foreign Laws, Approvals or Orders, including any liabilities environmental laws; (h) Liabilities of a Seller or obligations any of its predecessors or Affiliates arising from any Claim obligation of a Seller or any of its predecessors or Affiliates to indemnify any Person (including other than pursuant to an Assigned Contract to the extent assumed pursuant to Section 1.3(a) or pursuant to any workers’ compensation claimother Assumed Liability); (i) involving Liabilities of a Seller arising under this Agreement or any of the Purchased Assets Transaction Documents; (j) Liabilities arising under any Employee Benefit Plan of a Seller or the Business filed any of its predecessors or arising Affiliates; (k) Liabilities resulting from an Actionable Incident occurring any breach or default by Seller in respect to products sold or services performed by a Seller or any of its predecessors or Affiliates prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesClosing; and (gl) Liabilities attributable in any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of manner to the transactions contemplated hereby and therebyExcluded Assets.

Excluded Liabilities. Seller acknowledges that Notwithstanding anything to the sole liabilities and obligations being assumed by Buyer are contrary in Section 2.3, the Assumed Obligations do not include, and Seller and its Affiliates shall retain reserve, perform, discharge, and pay when due, all other liabilities Liabilities of Seller and obligations, its Affiliates that are not Assumed Obligations including the following Liabilities (collectivelyall Liabilities excluded pursuant to this Section 2.4, the “Excluded Liabilities”): (a) any liabilities trade accounts payable or obligations other accrued and unpaid current expenses to the extent not included in the calculation of the Adjustment Amount in accordance with Appendix A; (b) any Liabilities of Seller or its Affiliates to the extent related to any Excluded Assets; (bc) any liabilities or obligations Liabilities of Seller or its Affiliates in respect of Indebtedness; (cd) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes without duplication of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateright to recovery herein, local, or foreign law) as a transferee or successor, by contract or otherwise, except for and in no event including any Taxes for which Buyer is expressly liable that are allocated to Buyers pursuant to Section 3.4 3.4(b), any Taxes imposed on or Section 7.8; (d) any obligations of Seller with respect to Labo or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result ownership of the ClosingPurchased Assets or the ownership or operation of the Business that are allocated to Seller pursuant to Section 3.4(b); (e) all employment, labor, compensation, pension, employee welfare, severance, WARN Act, wage withholding Taxes, employer payroll, social security and similar Taxes and employee benefits related Liabilities, commitments and claims relating to: (i) each current or former employee of Seller or its Affiliates who does not become a Transferred Employee (or any dependent or beneficiary of any such employee) in respect of all periods, whether before, at or after Closing, except as otherwise expressly provided set forth in Section 7.10Schedule 7.13(i) and Schedule 7.13(k); and (ii) except for the Assumed Employee Liabilities, all Liabilities at any liabilities under time arising under, pursuant to or relating to any in connection with each Benefit Plan and any other benefit or compensation plan, program, policy, contract, agreement or arrangement at any time maintained, sponsored, contributed to or required to be contributed to by Seller or any of its Affiliates, Affiliates or under with respect to which Seller or any Affiliate of its Affiliates has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan;Liability; and (f) except for the Recoverable Liabilitiesas otherwise provided in this Agreement, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations Liabilities of Seller or its Affiliates arising under or in connection with this Agreement, any certificate or other document delivered in connection herewithherewith (including the Ancillary Agreements), and any of the transactions contemplated hereby Transactions, including fees and therebyexpenses of counsel, accountants, consultants and other advisors to Seller or any Affiliate thereof; and (g) the Liabilities, obligations and commitments listed on Schedule 2.4(g).

Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement, Buyer will not assume or be liable for any of the following liabilities or obligations of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any ), and none of the following liabilities or obligations will be Assumed Liabilities for purposes of Seller to the extent related to any Excluded Assets;this Agreement: (bA) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal Liabilities or partial withdrawal from obligations under this Agreement or termination of any Benefit Planother Transaction Document; (fB) except any of Seller’s Liabilities or obligations for expenses, income taxes or fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claimconsummation) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby (including, without limitation, all attorneys’, accountants’ and therebybrokers’ fees; (C) any of Seller’s Liabilities or obligations arising by reason of any violation or alleged violation by Seller, its agents or affiliates of any federal, state, local or foreign law or any requirement of any governmental authority or by reason of any breach or alleged breach by Seller, its agents or affiliates of any agreement, contract, lease, commitment, instrument, judgment, order or decree (regardless of when any such violation or breach is asserted or alleged to have occurred); (D) any Liabilities and obligations of Seller for product liability claims (including, without limitation, claims for destruction of property, personal injury or death), negligent or nonconforming service claims and related lawsuits (i) arising on or prior to the Closing Date or (ii) arising after the Closing Date with respect to products that became finished goods prior to the Closing Date or with respect to services rendered prior to the Closing Date (without regard to the date of any alleged accident); (E) any Liability or obligation against which Seller is insured or otherwise indemnified; (F) any Liability or obligation of Seller for the payment of dividends or the repurchase or other acquisition of any shares of its capital stock; (G) any Liability or obligation of Seller to any Affiliate or former Affiliate of Seller; (H) any Quest and Clear Channel Liability; (I) any Liability or obligation of Seller under any Acquired Contract arising on or before the Closing Date; (J) the $30,000 retention bonus agreed to by Seller; (K) except to the extent that the Buyer receives, pursuant to Section 9(h) below all benefits with respect with an Unassigned Asset, any Liability arising out of or with respect to such Unassigned Asset; and (L) any other Liability or obligation of Seller not expressly assumed by Buyer under Section 2(b) (i) above.

Excluded Liabilities. Seller acknowledges that Except to the sole extent specifically set forth in Section 2.2 above, Purchaser shall assume no liabilities and or obligations being assumed by Buyer are of Seller, whether absolute, contingent, known or unknown, determinable or not determinable or otherwise, or whether relating to the Assumed Obligations Purchased Assets or the Business or otherwise, and Seller shall retain all other such liabilities and obligations, including (collectivelyincluding, without limitation, the “Excluded Liabilities”):following: (a) any liabilities or obligations of Seller to the extent related to under any Excluded Assetsnote or evidence of indebtedness; (b) any liabilities or obligations of Seller in respect under this Agreement or any liability of IndebtednessSeller arising from any breach of obligations hereunder or of any representation or warranty hereunder; (c) any liabilities or obligations in respect of Taxes of Seller arising by reason of any violation of federal, state or local law or any Tax Affiliate of Sellerrule, regulation or any liability of Seller for unpaid Taxes other requirement of any Person under Treasury Regulation section 1.1502-6 (governmental authority occurring prior to the Closing, including, without limitation, any environmental, health, safety or similar provision of state, local, employment laws or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8regulations; (d) any obligations of Seller or liabilities for any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result income taxes imposed by reason of the Closingsale or conveyance of the Purchased Assets to Purchaser, it being understood and agreed that Purchaser will not be deemed to be Seller's transferee with respect to any such income tax liability; (e) except as otherwise expressly specifically provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability 3.5 hereof with respect to Seller’s or ad valorem taxes, any liability of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination Seller in respect of any Benefit Planamount of federal, state, local or foreign taxes (including, without limitation, ad valorem, franchise, payroll or sales and use taxes and any interest, penalties and additions to such taxes imposed by virtue of the operations of their businesses prior to the Closing), whether arising before, at or after the Closing; (f) except any liability or obligation of Seller for the Recoverable Liabilitiesbreach of contract, any liabilities breach of warranty, or obligations similar claim arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets products or the Business filed or arising from an Actionable Incident occurring services sold by Seller prior to the Effective Time, including Closing and any such Claims other claims by customers and vendors arising from circumstances existing prior to the Closing or Actionable Incidents disclosed in any liability or obligation of Seller for products liability claims arising from products or services sold by Seller prior to the Seller Disclosure Schedules; andClosing; (g) any obligation or liability of any kind under any employee benefit plan maintained currently or in the past by Seller, or under any employee benefit plan or agreement which Seller has any present or future obligation or liability or under which any of its employees has any present or future rights; (h) any liability arising in connection with the employment of any person by Seller, including (i) accrued vacation and bonuses, (ii) severance, settlement and noncompetition payments, (iii) sick leave, payroll and other compensation, (iv) insurance, continued insurance and COBRA benefits, (v) bonus plans and other employee benefit plans, programs and policies, (vi) taxes related to any of the foregoing, and (vii) any other liabilities or and obligations of Seller arising under with respect to its current, retired, deceased, disabled or in connection with this Agreement, former employees or their survivors or beneficiaries; (i) any certificate or other document delivered in connection herewith, liability of Seller for environmental claims and any contingent or undisclosed liabilities of Seller arising from circumstances existing prior to the transactions contemplated hereby and therebyClosing; (j) any liability of Seller in respect of injury to or death of any person or damage to or destruction of property occurring prior to the Closing; (k) any liability arising or accruing under any contract or agreement not included in the Assumed Agreements; and (l) any liability of Seller arising after the Closing.

Excluded Liabilities. Seller acknowledges that Buyer shall not assume or be obligated to pay, perform or otherwise discharge the sole following liabilities and or obligations being assumed by Buyer are (the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “"Excluded Liabilities”"): (a) any Any liabilities or obligations of Seller to the extent related to Sellers in respect of any Excluded Assets or other assets of Sellers which are not Purchased Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any Any liabilities or obligations in respect of Taxes attributable to the ownership, operation or use of Seller or any Tax Affiliate of SellerPurchased Assets for taxable periods, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateportions thereof, local, or foreign law) as a transferee or successor, by contract or otherwiseending before the Closing Date, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 Sections 3.5 or Section 7.86.8(a) hereof; (c) Any liabilities or obligations of Sellers accruing under any of the Sellers' Agreements prior to the Closing Date; (d) Any and all asserted or unasserted liabilities or obligations to third parties (including employees) for personal injury or tort, or similar causes of action arising solely out of the ownership or operation of the Purchased Assets prior to the Closing Date, other than any liabilities or obligations which have been assumed by Buyer under Section 2.3(d); (e) Any fines, penalties or costs imposed by a Governmental Authority resulting from (i) an investigation, proceeding, request for information or inspection before or by a Governmental Authority pending prior to the Closing Date but only regarding acts which occurred prior to the Closing Date, or (ii) illegal acts, willful misconduct or gross negligence of Sellers prior to the Closing Date, other than, any such fines, penalties or costs which have been assumed by Buyer under Section 2.3(d); (f) Any payment obligations of Sellers for goods delivered or services rendered prior to the Closing Date, including, but not limited to, rental payments pursuant to the Real Property Leases and Personal Property Leases; (g) Any liability, obligation or responsibility under or related to Environmental Laws or the common law, whether such liability or obligation or responsibility is known or unknown, contingent or accrued, arising as a result of or in connection with loss of life, injury to persons or property or damage to natural resources (whether or not such loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) to the extent caused (or allegedly caused) by the off-Site disposal, storage, transportation, discharge, Release, or recycling of Hazardous Substances, or the arrangement for such activities, of Hazardous Substances, prior to the Closing Date, in connection with the ownership or operation of the Purchased Assets, provided that for purposes of this Section "off-Site" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated; (h) Any liability, obligation or responsibility under or related to Environmental Laws or the common law, whether such liability or obligation or responsibility is known or unknown, contingent or accrued, arising as a result of or in connection with the investigation and/or Remediation (whether or not such investigation or Remediation commenced before the Closing Date or commences on or after the Closing Date) of Hazardous Substances that are disposed, stored, transported, discharged, Released, recycled, or the arrangement of such activities, prior to the Closing Date, in connection with the ownership or operation of the Purchased Assets, at any off-Site location, provided that for purposes of this Section "off-Site" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated; (i) Third party liability for toxic torts arising as a result of or in connection with loss of life or injury to persons (whether or not such loss or injury arose or was made manifest on or after the Closing Date) caused (or allegedly caused) by the presence or Release of Hazardous Substances at, on, in, under, adjacent to or migrating from the Purchased Assets prior to the Closing Date; (j) Subject to Section 6.10, any liabilities or obligations relating to any Benefit Plan maintained by the Sellers or any trade or business (whether or not incorporated) which is or ever has been under common control, or which is or ever has been treated as a single employer, with a Seller under Section 414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") or to which a Seller and any ERISA Affiliate contributed thereunder (the "ERISA Affiliate Plans"), including any multi-employer plan, maintained by, contributed to, or obligated to contribute to, at any time, by a Seller or any ERISA Affiliate, including but not limited to any liability (i) relating to benefits payable under any Benefit Plans (ii) relating to the Pension Benefit Guaranty Corporation under Title IV of ERISA; (iii) relating to a multi-employer plan; (iv) with respect to non-compliance with the notice and benefit continuation requirements of COBRA; (v) with respect to any noncompliance with ERISA or any other applicable laws; or (vi) with respect to any suit, proceeding or claim which is brought against Buyer, any Benefit Plan, ERISA Affiliate Plan, any fiduciary or former fiduciary of any such Benefit Plan or ERISA Affiliate Plan; (k) Subject to Section 6.10, any liabilities or obligations relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination by a Seller of any individual, attributable to any actions or inactions by the Sellers prior to the Closing Date other than such actions or inactions taken at the written direction of Buyer; (l) Subject to Section 6.10, any obligations for wages, overtime, employment taxes, severance pay, transition payments in respect of compensation or similar benefits accruing or arising prior to the Closing under any term or provision of any contract, plan, instrument or agreement relating to any of the Purchased Assets; and (m) Any liability of a Seller arising out of a breach by a Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or their respective obligations under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets this Agreement or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyAncillary Agreements.

Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, the Buyer will not assume, be obligated to assume, be deemed to have assumed or be obligated to pay, perform or otherwise discharge, and the Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller Group shall retain and be solely and exclusively liable with respect to, any Liabilities of the Seller Group that are not Transferred Liabilities (all such Liabilities other liabilities and obligations, including (collectivelythan the Transferred Liabilities, the “Excluded Liabilities”):). Without limiting the generality of the foregoing, the Buyer will not assume, be obligated to assume, be deemed to have assumed or be obligated to pay, perform or otherwise discharge the following Excluded Liabilities: (ai) subject to Section 4.19 and the Transition Services Agreement (as defined below), any liabilities or obligations of Seller Liability to the extent related to to, resulting from or arising out of the ownership, use or operation of, any Excluded AssetsMN Assets and Liabilities and the MN Business; (bii) except as set forth in Section 1.1(c)(iii) and Section 4.18(d) any liabilities Liability to the extent related to, resulting from, or obligations arising out of Seller in respect of Indebtednessthe operation of, any Excluded Asset; (ciii) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller Liability for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 member of the Seller Group (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for excluding any Transfer Taxes for which the Buyer is expressly liable responsible pursuant to Section 3.4 or Section 7.84.10(b)); (div) any Liability for or obligations of Seller with respect to any compensation or benefit arrangements (for the Employees or otherwise) related to, resulting from or arising under any of its Affiliates for wages, vacation pay, Benefit Plan other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to than the extent attributable to the period prior to the Effective Time or which may become payable as a result of the ClosingContinuing Plans; (ev) except as otherwise expressly provided in Section 7.10, any liabilities under Liability for or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability obligations with respect to Seller’s any compensation or benefit arrangements for any Employees terminated by or at the direction of Seller’s Affiliate’s withdrawal the Seller or partial withdrawal from or termination of any Benefit Plan; (f) except for Holdings after the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring Execution Date and prior to the Effective TimeClosing, including other than any such Claims or Actionable Incidents disclosed in Liabilities with respect to any Employees who are terminated at the joint direction of the Seller Disclosure Schedulesand the Management Team; and (gvi) any liabilities brokers’, finder’s, financial advisor’s or obligations of Seller arising under other similar fee or commission in connection with this Agreement, any certificate Agreement or other document delivered in connection herewith, and any the Transactions contemplated hereby based upon arrangements made by or on behalf of the transactions contemplated hereby and therebySeller Group.

Excluded Liabilities. Notwithstanding the provisions of Section 2.3, Buyer does not agree to assume, perform or discharge, indemnify Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are against, or otherwise have any responsibility for, any Liabilities of Seller other than the Assumed Obligations and Seller Liabilities, whether arising prior to, on or after the Closing (which such Liabilities shall retain all other liabilities and obligations, including (collectively, be collectively referred to herein as the “Excluded Liabilities”):). Without limiting the generality of the foregoing, Excluded Liabilities shall include: (a) except for the Assumed Liabilities, any liabilities or obligations of Seller Liabilities relating to the extent related Business or the Transferred Assets incurred or occurring at or prior to any Excluded Assetsthe Closing, whether currently in existence or arising hereafter; (b) except for the Assumed Liabilities, any liabilities or obligations Liabilities of Seller in respect or any businesses or assets of Indebtednessany Affiliate of Seller; (c) any liabilities Liability relating to or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes arising out of any Person under Treasury Regulation section 1.1502Excluded Asset, such as the Liabilities of Icagen-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8T; (d) other than Liabilities expressly assumed pursuant to Section 2.3(c), any obligations Liabilities related to, based upon, or in connection with any current or former officers, directors, employees, consultants or independent contractors of Seller or any Affiliate of Seller, including: (i) Liabilities with respect to any such Person’s unpaid wages, cash or equity incentive compensation, paid time off, payroll, unpaid commissions, bonuses, sick leave or vacation, bereavement time, floating holidays or other similar paid time off, severance, retention, expense reimbursements, unemployment insurance benefits and related penalties, premiums, and interest arising from any actual or alleged labor and employment claims or wage and hour violations (such as the nonpayment or untimely payment of any accrued wages or compensation) and Taxes; (ii) Hired Employee Obligations; (iii) Change of Control Payments; and (iv) Liabilities arising under the WARN Act, ERISA, Employee Plans or applicable Law; (e) any Liability relating to, based upon or arising under or in connection with any Employee Plan; (f) any Environmental Liabilities incurred prior to Closing; (g) any Liabilities in respect of any pending or threatened Proceeding arising out of, relating to or otherwise in respect of the operation of the Business or the Transferred Assets to the extent such Proceeding relates to such operation at or prior to the Closing; (h) any Liabilities arising out of, in connection with or relating to any violations by Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementof, or retention the failure by Seller or severance pay any of its Affiliates to comply with, any Law; (i) any Indebtedness of Seller and/or the Business other than Assumed Liabilities, with the overdue amounts payable to Nanion treated as Indebtedness by agreement of the parties; (j) except to the extent arising under a Real Property Lease after the Closing, any Liability with respect to real property, whether owned, leased or otherwise; (k) any Liability for: (i) Taxes of Seller or any Affiliate of Seller; (ii) Taxes with respect to the Business or the Transferred Assets attributable to the period prior to Closing; or (iii) Transfer Taxes; (l) except to the Effective Time extent arising under an Assumed Contract after the Closing, any Liability, whether currently in existence or which may become payable arising hereafter, owed by Seller to any of its Affiliates; 4826-7940-7793v12/101501-0066 (m) the obligation to pay additional premiums as a result of underpayment of premiums for insurance policies included in the ClosingTransferred Assets, to the extent attributable to any time period ending on or prior to the Closing Date; (en) except as otherwise expressly provided in Section 7.10any Transaction Expenses; (o) any Liabilities to indemnify, any liabilities under reimburse or relating advance amounts to any Benefit Plan at any time maintainedpresent or former officer, contributed to director, employee or required to be contributed to by agent of Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability (including with respect to Seller’s or any breach of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedulesfiduciary obligations); and (gp) any liabilities or obligations Liability in respect of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any matter set forth on Section 2.4(p) of the transactions contemplated hereby and therebyDisclosure Schedule.

Excluded Liabilities. Seller acknowledges that Notwithstanding anything to the sole liabilities and obligations being assumed by contrary in this Agreement or any of the Schedules attached hereto, Buyer are the Assumed Obligations will not assume or be liable for, and Seller shall retain all other liabilities and obligationspay, including perform and discharge when due, and Seller shall indemnify Buyer and its Affiliates against and hold them harmless from, any obligation or liability of Seller of any kind or nature, known or unknown, contingent or otherwise, except those expressly assumed by Buyer in Section 1(b) above (collectively, the “"EXCLUDED LIABILITIES"), and Seller shall retain and pay, perform, including, without limitation, the following Excluded Liabilities”):: (ai) all indebtedness or other obligation of the Seller or any of its Affiliates for borrowed money, whether current, short-term or long-term, secured or unsecured, (ii) all indebtedness of the Seller or any of its Affiliates for the deferred purchase price for purchases of property which is not evidenced by trade accounts payables, (iii) all lease obligations of the Seller or any of its Affiliates under leases which are capital leases in accordance GAAP (other than the Assumed Leases), and (iv) any liabilities liability of the Seller under deferred compensation plans, severance or obligations bonus plans or similar arrangements made payable as a result of Seller the transactions contemplated herein, other than the Severance Payments or pursuant to the extent related to any Excluded AssetsRetention Agreements (collectively, "INDEBTEDNESS"); (bii) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay including Seller's pro rata portion of any real and personal property taxes with respect to its ownership and use of any of the extent attributable to the period Acquired Assets prior to the Effective Time or which may become payable as a result of the ClosingClosing Date; (eiii) except as otherwise expressly provided in Section 7.107(l), any liabilities liability or obligation under or relating with respect to any Benefit Plan at or any time maintainedother employee benefit plan, contributed to program, policy or required to be arrangement presently or formerly maintained or contributed to by any member of the controlled group of companies (as such term is defined in Section 414 of the Code) of which Seller is or was a member, or with respect to which Seller or such controlled group member has any liability; (iv) any liability or obligation with respect to any former employee of Seller or any employee of Seller who does not become a Transferred Employee in accordance with Section 7(l); (v) any intercompany and intracompany payables; (vi) any liability of the Seller or any of its AffiliatesAffiliates arising out of, resulting from or under which Seller relating to infringement, misappropriation or other conflict in connection with the Seller's Intellectual Property or the Intellectual Property of any Affiliate has third party, whether arising before or may incur liabilityafter the Closing, or any contributions, benefits or liabilities therefor, or except for any liability of arising after the Closing in connection with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit PlanIntellectual Property that is an Acquired Asset; (fvii) except for any liability relating to the Recoverable LiabilitiesSeller's proposed horticultural sales and service center that was to be located in Somerset, New Jersey (other than the reimbursement of Seller referred to in Section 6(h)); (viii) any liability relating to any Excluded Asset; (ix) any liability to any officer, director, employee, former employee, consultant or agent of Seller, including workers' compensation, union contracts, medical or sick pay liabilities, pension or profit sharing liabilities or obligations arising from severance liabilities or any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed other employee benefit offered by Seller incurred or arising from an Actionable Incident occurring prior to the Effective TimeClosing Date, other than pursuant to the Retention Agreements and the Severance Agreements; (x) any obligation, violation or liability (contingent or otherwise and including any such Claims liability for response costs, personal injury, property damage or Actionable Incidents disclosed natural resource damage) arising under Environmental, Health and Safety Laws (whether accruing to the Seller or the Buyer in the first instance) in connection with offsite disposal of any materials by Seller Disclosure Schedulesor former facilities owned or operated by Seller; and (gxi) any all liabilities or obligations of Seller arising under or set forth in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebySCHEDULE 1(c)(xi).

Excluded Liabilities. Buyer shall not assume, nor become responsible for, any Liabilities of Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are other than the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Liabilities (collectively, the “Excluded Liabilities”):), each of which shall remain the Liability of Seller. For the avoidance of doubt, Excluded Liabilities includes all Liabilities arising out of, in respect of or relating to: (a) any liabilities 2.1. the ownership of the Purchased Assets or obligations the operation or conduct of Seller the Business prior to the extent related to any Closing; 2.2. all trade accounts payable, regardless of when incurred, billed or imposed, of Seller; 2.3. the Excluded Assets; 2.4. (a) the portion of the Transfer Taxes that are the responsibility of Seller pursuant to Section 6.2.1, (b) all Taxes of or imposed on Seller for any liabilities or obligations of Seller in respect of Indebtedness; Tax period, and (c) any liabilities or obligations in respect of Taxes of Seller or with respect to the Business or the Purchased Assets for any Pre-Closing Tax Affiliate Period, (which in the case of a Straddle Period, shall be allocated to the Pre-Closing Tax Period in accordance with the methodology set forth in Section 6.2.3) including any such Taxes that Buyer is liable for as withholding agent or transferee; 2.5. any indebtedness of Seller, ; 2.6. all Liabilities related to the employment or any liability service (or the termination of Seller for unpaid Taxes employment or service) of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintainedby Seller, including all Liabilities arising under, pursuant to or in connection with, any Seller employee plan or any other compensation or benefit plan, program, policy, Contract or other arrangement that is or was at any time established, sponsored, maintained or contributed to (or required to be contributed to to) by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s which Seller has or could have any of Seller’s Affiliate’s withdrawal Liability or partial withdrawal from obligation (whether current or termination of any Benefit Plancontingent); 2.7. this Agreement and the other Transaction Documents (f) except for the Recoverable Liabilities, any liabilities other than Liabilities or obligations arising from attributable to any Claim (including any workers’ compensation claim) involving failure by Buyer to comply with the Purchased Assets terms hereof or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedulesthereof); and (g) any liabilities or obligations 2.8. the Specified IP Matters; and 2.9. all Liabilities of Seller arising under or in connection outstanding at Closing with this Agreement, respect to the supply of any certificate or other document delivered in connection herewith, and any remaining quantity of the transactions contemplated hereby and therebyInitial Order or Expedited Initial Order pursuant to Section 3.4 of the Takasago Agreement to Takasago International Corporation for which payment, as the Extension Credit, has been made pursuant to Section 4.1(e) of the Takasago Agreement.

Excluded Liabilities. Seller acknowledges that Notwithstanding any provision in this Agreement to the sole liabilities contrary, Buyer shall not assume and obligations being assumed by Buyer are the Assumed Obligations shall not be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of Seller, whether presently in existence or arising hereafter, known or unknown, disputed or undisputed, contingent or non-contingent, liquidated or unliquidated, or otherwise, and Seller shall retain be solely and exclusively liable with respect to all Liabilities of Seller, other liabilities and obligations, including than the Assumed Liabilities (collectively, collectively the “Excluded Liabilities”):). For the avoidance of doubt, the concept of Excluded Liabilities is intended to be construed as broadly as possibly under applicable law, including Section 363 of the Bankruptcy Code as interpreted, and shall include, without limitation, the following: (a) any liabilities or obligations Liability of Seller or its directors, officers, stockholders or agents (acting in such capacities), arising out of, or relating to, this Agreement or the transactions contemplated by this Agreement, whether incurred prior to, at or subsequent to the extent related to Closing Date, including, without limitation, all finder’s or broker’s fees and expenses and any Excluded Assetsand all fees and expenses of any Representatives of Seller; (b) any liabilities Liability relating to events or obligations conditions occurring or existing in connection with or arising out of, the Facility as operated by Seller, or the ownership, possession, use, operation or sale or other disposition prior to the Closing Date of Seller in respect of Indebtednessany Purchased Assets (or any other assets, properties, rights or interests associated, at any time prior to the Closing Date, with the Facility), including trade obligations, accrued payroll and other compensation; (c) other than as specifically set forth herein, any liabilities or obligations in respect of Taxes of Liability to any Persons at any time employed by Seller or its predecessors-in-interest at any Tax Affiliate time or to any such Person’s spouses, children, other dependents or beneficiaries, with respect to incidents, events, exposures or circumstances occurring at any time during the period or periods of Sellerany such person’s employment by Seller or its predecessors-in-interest, whenever such claims mature or are asserted, including without limitation, all Liabilities arising (i) under the Benefit Plans, (ii) under any employment, wage and hour restriction, equal opportunity, discrimination, plant closing or immigration and naturalization laws, (iii) under any collective bargaining laws, agreements or arrangements or (iv) in connection with any workers’ compensation or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (other employee health, accident, disability or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8safety claims; (d) any obligations all Liabilities of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementSeller, or retention or severance pay with respect to the extent attributable to the period prior to the Effective Time Facility, in connection with claims of professional malpractice or which may become payable as a result of the Closingtort; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by all Liabilities of Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination the Facility for violations of any Benefit PlanLegal Requirement; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving Liability of Seller relating to the Purchased Assets connected with, arising out of or the Business filed relating to: (i) Hazardous Substances or arising from an Actionable Incident occurring prior Environmental Laws, (ii) claims relating to the Effective Timeemployee health and safety, including claims for injury, sickness, disease or death of any such Claims Person or Actionable Incidents disclosed in (iii) compliance with any Legal Requirement relating to any of the Seller Disclosure Schedules; andforegoing; (g) any liabilities or obligations liability of Seller or any ERISA Affiliate under Title IV of ERISA, including with respect to any single employer plan, multiemployer plan or multiple employer plan; (h) any Liability of Seller under the Benefit Plans including any pension, retirement or retiree health and welfare Liability to Seller’s current or former employees; (i) any Liability of Seller under COBRA or similar state law; (j) any Liability of Seller under the WARN Act or similar state law; (k) any Liability of Seller under any Benefit Plans ever maintained or offered by Seller to its employees, including any pension, retirement, or retiree health and welfare Liability to Seller’s current or former employees; (l) all Liabilities owed by Seller to Seller’s employees; (m) any Liability, known or unknown, fixed, contingent or otherwise, the existence of which is a breach of, or inconsistent with, any representation, warranty, covenant, obligation or agreement of Seller set forth in this Agreement or in any of the other Ancillary Documents; (n) any Liability of Seller for Taxes, including, without limitation, Taxes attributable to, resulting from, or otherwise arising from the transaction contemplated by this Agreement; (o) any Liability to any Person or Seller on account of any Action or Proceeding; (p) any Liability of Seller under any Collective Bargaining Agreements; (q) any Liability of Seller on account of any private sector cost reimbursement programs or insurance coverage; (r) any experience ratings of Seller maintained by taxing authorities such as unemployment boards; (s) any Liability of Seller relating to or arising out of the ownership or operation of an Excluded Asset; (t) all Liabilities arising out of or pursuant to the Seller Medicare Provider Agreements; and (u) any Liabilities of Seller relating to the ▇▇▇ Lease, including without limitation, any recapture or other liabilities of Seller in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebytermination thereof.

Excluded Liabilities. Seller acknowledges that the sole All liabilities and obligations being assumed by Buyer are of the Seller not expressly included in the Assumed Obligations and Seller shall retain all other liabilities and obligationsLiabilities are excluded from the transactions contemplated in this Agreement, including including, without limitation, the following (collectively, the “"Excluded Liabilities”"): (a) any liabilities or obligations of Seller all deposit accounts attributed to the extent related Branches as of the close of business on the day immediately preceding the Closing Date which are subject to any Excluded Assetsorder, agreement or encumbrance that in any way restricts the payment of funds representing such account on the order of the depositor; (b) all securities brokerage accounts or dealer reserve accounts maintained by the Seller or any liabilities or obligations of Seller in respect its affiliates for a customer attributed to any of Indebtednessthe Branches; (c) any liabilities all amounts and deposits held by the Seller relating to trust accounts or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable to other customer relationships not being transferred pursuant to Section 3.4 or Section 7.8this Agreement; (d) any obligations of all liabilities associated with cashier's checks or other official bank checks and traveler's checks issued by the Seller or at any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period Branches prior to the Effective Time or which may become payable as a result of the Closing;Closing Date; and (e) all liabilities and obligations of the Seller relating to the ▇▇▇▇▇▇ Division that are not expressly included in the Assumed Liabilities. It is expressly understood and agreed that, except as otherwise expressly provided set forth in Section 7.10this Agreement, along with the exhibits and schedules hereto, the Purchaser shall not assume or be liable for any of the debts, obligations or liabilities under of the Seller of any kind and nature whatsoever including, but not limited to: any losses or relating to any Benefit Plan at any time maintained, contributed liabilities due to or required to be contributed to by Seller or any of its Affiliatesarising from forgery, or under which Seller or any Affiliate has or may incur liabilityfraud, defalcation, or any contributionsother improper act or omission occurring on or before the Closing Date; any tax or debt therefore (except relating to Fall & Fall Insurance); any liability for unfair practices (such as wrongful termination or employment discrimination), benefits any liability or liabilities thereforobligation of the Purchaser arising out of any threatened or pending litigation, or any liability with respect to Seller’s personal injury or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyproperty damage claims.

Excluded Liabilities. It is expressly understood and agreed that, notwithstanding anything to the contrary in this Agreement, Seller acknowledges that the sole and its Affiliates shall retain or assume and be solely liable and responsible for all liabilities and obligations being assumed by Buyer are of Seller and its Affiliates (other than IP LLC), other than the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Liabilities (collectively, the “Excluded Liabilities”):), including: (ai) any all obligations and liabilities or obligations of Seller or its Affiliates with respect to the extent related indebtedness for borrowed money or other debt-like obligations (including relating to any Excluded Assetsdeferred or contingent payments, swaps or hedging arrangements, capital or finance leases, accrued but unpaid severance obligations or letters of credit or similar instruments); (bii) all obligations and liabilities (A) for any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, and any Taxes related to the Acquired Assets or any liability of Seller for unpaid the Business or Taxes of IP LLC that were incurred in or are attributable to any Person under Treasury Regulation section 1.1502-6 taxable period (or similar provision of stateportion thereof) ending on or before the Closing Date, localin each case, or foreign law) as a transferee or successor, by contract or otherwise, except other than obligations and liabilities for Taxes for and expenses which are the responsibility of Buyer is expressly liable pursuant to Section 3.4 or 7.8, and (B) for any Taxes and expenses which are otherwise the responsibility of Seller pursuant to Section 7.8; (diii) except as specifically provided in Section 7.6 and except for any Assumed Liability, all obligations and liabilities arising out of or related to the employment by Seller or any of its Affiliates of any current or former Business Employee, including any liability or obligation to which any Business Employee becomes entitled under any Employee Benefit Plan (as defined in Section 2.14(a)), including any Employee Benefit Plan that exists or arises (or may be deemed to exist or arise) under any applicable law or otherwise, as a result of, or in connection with, (A) the sale of the Business hereunder, (B) the employment of any Business Employee by Seller or any Affiliate of Seller or (C) the termination of any Business Employee by Seller or any Affiliate of Seller; (iv) all obligations and liabilities to make payments to any employee of Seller pursuant to retention agreements, change of control agreements and/or bonus agreements, in each case relating specifically to the consummation of the transaction contemplated by this Agreement and entered into prior to the Closing between Seller or an Affiliate of Seller and any such employee; (v) except as specifically provided in Section 7.6, liabilities and obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay with respect to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closingany Employee Benefit Plan; (evi) except as otherwise expressly provided all liabilities and obligations of Seller or its Affiliates (other than those incurred by IP LLC following the Closing) for costs and expenses incurred in Section 7.10, connection with this Agreement or the consummation of the transactions contemplated by this Agreement (including (1) any liabilities under fees or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to expenses payable by Seller or any of its AffiliatesAffiliates on behalf of the Business to financial, legal, accounting or under which other advisors and (2) the fees and expenses of any electronic data room); (vii) all liabilities to indemnify any officer or director of Parent, Seller or any Affiliate has of their respective Affiliates (and any related reimbursement or may incur liabilityadvancement obligations) arising out of his or her service in such capacity; (viii) all Liabilities to the extent arising out of, relating to or otherwise in respect of any contributionscriminal violations of any Law relating to the Business that occurred prior to the Closing or in respect of any violations of antitrust, benefits competition, anti-monopoly, anti-cartel, and unfair-competition Laws; export-control, trade and economic sanctions Laws (including the U.S. Commerce Department’s Export Administration Regulations and sanctions Laws maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, as well as all applicable export-control and sanctions Laws maintained by other jurisdictions); anti-corruption laws; anti-boycott, anti-terrorism or liabilities therefor, arms-control Laws; or any liability with respect to Seller’s similar Laws by the Seller or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring its Affiliates that occurred prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesClosing; and (gix) any all liabilities or and obligations of Seller arising or its Affiliates (other than, after the Closing, IP LLC) under this Agreement or any other Transaction Document. From and after the Closing, Seller shall indemnify Buyer in connection with this Agreementrespect of, and hold Buyer harmless against, any certificate and all Damages incurred or other document delivered in connection herewith, and suffered by Buyer or any of its Affiliates to the transactions contemplated hereby and therebyextent resulting from or constituting Excluded Liabilities.

Excluded Liabilities. Notwithstanding any provision in this Agreement or any other writing to the contrary, Buyer will assume at Closing only the Assumed Liabilities and Buyer does not assume or agree or undertake to pay, satisfy, discharge or perform in respect of, and will not be deemed by virtue of this Agreement or any document delivered in connection herewith, or as a result of the consummation of the transactions contemplated hereby to have assumed or to have agreed to pay, satisfy, discharge or perform, any other Liability of any Seller acknowledges that the sole or any Affiliate of a Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising or asserted hereafter. All such Liabilities shall be retained by and remain obligations and liabilities and obligations of Sellers or their Affiliates (all such Liabilities not being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, being herein referred to as the “Excluded Liabilities”):). Without limiting the foregoing, none of the following shall be Assumed Liabilities for the purposes of this Agreement: (a) any liabilities or obligations and all Liabilities of Sellers under the Contracts that have not been duly assigned by a Seller to the extent related to any Excluded AssetsBuyer; (b) except as provided in Article IX or as set forth in Section 2.03(c), any liabilities and all Liabilities of Sellers relating to employee benefits or compensation arrangements of any nature, including any severance obligations and any and all Liabilities under any of Seller in respect of IndebtednessSeller’s employee benefit agreements, plans or other arrangements listed on Schedules 9.02 and 9.04; (c) except as set forth in Section 2.03(c), any liabilities and all Liabilities relating to or obligations arising out of the employment by a Seller and/or termination by a Seller of employees employed in respect of Taxes of Seller the Business, including employees who are parties to employment, compensation or any Tax Affiliate of other similar agreements with Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations and all Liabilities of Seller Sellers for breach of contract, breach of warranty, personal injury, property damage, infringement, violation of law, indemnification or otherwise (whether based on negligence, breach of warranty, strict liability or any other theory) caused by or arising out of its Affiliates or resulting from, directly or indirectly, any alleged or actual acts or omissions occurring on or before the Closing Date; (e) any and all Liabilities of a Seller for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable Taxes (including any Taxes that arise as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to transactions contemplated by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planthis Agreement); (f) except any and all Liabilities for the Recoverable Liabilities, or relating to any liabilities Indebtedness or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Timeequity securities of Sellers, including any such Claims warrants and other rights to acquire equity securities of any Seller or Actionable Incidents disclosed in the Seller Disclosure Schedules; andany Affiliates of Sellers or any other Person; (g) any liabilities and all Environmental Liabilities; (h) any and all litigation, claim, assessment, action, suit, proceeding, order, judgment, decree or obligations investigation of any kind or nature and any and all Liabilities of Sellers or any of their Affiliates relating to the Questra Litigations, including Liabilities for (i) payment or performance of any judgment, order or decree that may be entered against any of such Sellers in either or both of such litigation proceedings; and (ii) payment of all counsel fees, expert witness fees and other fees and costs pertaining to the prosecution or defense of either or both of such litigation proceedings; (i) any and all Liabilities of Sellers to any present or former officer (except as set forth in Section 2.03(c)), director or stockholder of a Seller arising under or in his capacity as such; (j) any and all Liabilities relating to an Excluded Asset; and (k) any and all other Liabilities of every kind of a Seller incurred by a Seller in connection with this Agreementwith, any certificate or other document delivered in connection herewitharising by reason of, and any its ownership of the transactions contemplated hereby and therebyPurchased Assets or its conduct of the Business on or prior to the Closing, other than the Assumed Liabilities.

Excluded Liabilities. Seller acknowledges that Buyer does not assume and will not be obligated to pay, perform, or otherwise discharge any of the sole following liabilities and or obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller for any breach or default by Seller prior to the Effective Time, or any event prior to the Effective Time, which after the giving of notice or passage of time or both (it being understood that the giving of notice or passage of time may occur prior to or after the Effective Time) would constitute a default or breach by Seller, of or under the Business Agreements, the Permits, or the Environmental Permits, except to the extent that such liability or obligation is taken into account in respect of Indebtednessdetermining the Adjustment Amount; (c) all trade accounts payable and other accrued and unpaid expenses in respect of goods and services incurred by or for the Business in the ordinary course of business or otherwise, to the extent attributable to the period prior to the Effective Time (the “Accounts Payable”); MISSOURI GAS (d) any liabilities or obligations of Seller in respect of indebtedness for borrowed money; (e) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.87.7; (df) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable (except, with respect to vacation days and severance pay, as a result of the Closingotherwise provided in Section 7.9); (eg) except for the Assumed Environmental Liabilities, Losses from an Actionable Incident related to the Purchased Assets or Business; (h) except as otherwise expressly provided in Section 7.107.9, any liabilities liability or obligation of Seller under any deferred compensation arrangement or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller severance policy or any of its Affiliates, obligation to make any parachute or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planretention payment; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (gi) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate Agreement or other document the Ancillary Agreements delivered in connection herewith, and any of the transactions contemplated hereby and thereby.; (j) any Claims or Losses arising out of, in connection with or related to (i) the lawsuit filed on September 4, 2004 and pending, with consolidated lawsuits, in the U.S. District Court for the Western District of Missouri as described on Schedule 5.12(d), Item 2 (including indemnification obligations owed or claimed to be owed to members of Seller’s Board and/or employees); (ii) any liabilities of the Business owed or claimed to be owed to Seller as of the Effective Time (including intercompany or interdivisional accounts payable); (iii) any actions or inactions by Seller or any employee of Seller prior to Closing which constitute illegal or criminal activity in connection with Seller’s (A) receipt of any rebates, payments, commissions, promotional allowances or any other economic benefit, regardless of its nature or type, from any customer, supplier, trading company, shipping company, governmental employee or other Person with whom Seller has done business directly or indirectly, or (B) giving or agreeing to give any gift or similar benefit to any customer, supplier, trading company, shipping company, governmental employee or other person or entity who is or may be in a position to help or hinder the business of Seller (or assist Seller in connection with any actual or proposed transaction); or (iv) customer deposits, customer advances for construction and other similar items to the extent not reflected in the FERC Accounts; and (k) any criminal fines, penalties, or sanctions imposed as a result of actions or omissions by Seller or any employee of Seller prior to the Closing. MISSOURI GAS

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Other than the Assumed Obligations Liabilities, all liabilities, liens and other obligations of Seller shall retain all other liabilities and obligations, including relating to the Business or the Purchased Assets arising prior to the Closing Date (collectively, the “Excluded Liabilities”): (a) ), shall remain the sole responsibility of and shall be retained by the Seller, and Buyer shall not be responsible to pay, perform, or discharge the Excluded Liabilities. Excluded Liabilities shall include, without limitation: any debts, liabilities or obligations of Seller to the extent related to any Excluded Assets; not specifically listed in Schedule 1.02(b) hereof, including (bi) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of the Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateincome, localtransfer, or foreign law) as a transferee or successorsales, by contract or otherwiseuse, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, and all other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations taxes arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any the consummation of the transactions contemplated hereby (including any income taxes arising because the Seller is transferring the Purchased Assets), whether imposed on Seller as a matter of law, under this Agreement or otherwise, (ii) any liability of the Seller for taxes, including liability of the Seller for taxes of any person other than the Seller, (iii) any liability of Seller with respect to any indebtedness for borrowed money or credit card payables, (iv) any liability of Seller arising out of any threatened or pending litigation or other claim, (v) any liability of Seller, whether arising by operation of law, contract, past custom or otherwise, for unemployment compensation benefits, pension benefits, salaries, wages, bonuses, incentive compensation, sick leave, severance or termination pay, vacation and therebyother forms of compensation or any other form of employee benefit plan (including the health benefits payable reflected on the Seller’s balance sheet), agreement (including employment agreements), arrangement or commitment payable to or for the benefit of any current or former officers, directors and other employees and independent contractors of Seller, (vi) any liabilities of Seller to the Stockholder or any affiliates or current or former stockholders, or other equity owners of Seller, (vii) any liability for costs and expenses of the Seller in connection with this Agreement or any transactions contemplated hereby, (viii) any negative cash or book balances or any intercompany debt by and between, or by and among, Seller and any affiliate of Seller and (ix) any environmental liability arising out of or relating to the operation of the Business by Seller prior to the Closing or Seller’s leasing, ownership or operation of real property. All Excluded Liabilities shall be the responsibility of Seller, and ▇▇▇▇▇▇ agrees to indemnify and hold the Buyer harmless against any Excluded Liabilities in accordance with Article VII below.

Excluded Liabilities. Seller acknowledges that Other than as provided in Section 2.4(d) above, the sole liabilities Buyer will not assume, and will not be deemed to have assumed, any other obligation or liability of the Seller, the Business or the Purchased Assets whatsoever (all such other obligations and liabilities, including, without limitation, those set forth on Schedule 2.4(e), being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, collectively referred to herein as the “Excluded Liabilities”):), including: (a1) Except as set forth in Section 6.5, any liabilities or obligations under the Seller Plans or any liabilities relating to severance, payroll, vacation, sick leave, contributions for workers’ compensation, coverage or unemployment, pension or profit-sharing benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other employee plans or benefits of Seller any kind for the Current Employees or former employees or both for periods prior to the extent related to any Excluded AssetsClosing Date; (b2) With the exception of the Seller Notes, any liabilities or obligations attributable or relating to (i) the violation of Seller any Assumed Contract or Legal Requirement, or (ii) any third party or Governmental Body claim, in respect of Indebtednesseither case arising from any act, omission or circumstance that took place on or prior to the Closing; (c3) Any Environmental Liabilities or other liabilities (a) arising out of any act, omission, condition or circumstance which existed or occurred, on or prior to the Closing Date (i) related or attributable to a Release or Threat of Release of Hazardous Materials by the Seller (or any predecessor of Seller), the Business or any Person for whose conduct the Seller or the Business is responsible at (x) any liabilities of the Facilities or obligations in respect (y) any location at which Hazardous Activities were conducted or Hazardous Materials were generated, manufactured, refined, transferred, used or processed by the Seller (or any predecessor of Taxes of Seller), the Business or any Person for whose conduct the Seller or the Business is responsible or (b) arising from or attributable to a breach or violation of any Tax Affiliate of Environmental Legal Requirements by Seller, the Business or any Person for whose conduct Seller or the Business is responsible, on or prior to the Closing Date; (4) Tax Liabilities; (5) Any liability of Seller for unpaid Taxes of under any Person under Treasury Regulation section 1.1502-6 Excluded Contract; (6) Any liabilities existing on or similar provision of state, local, or foreign law) as a transferee or successor, before Closing not expressly assumed by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.82.4(d); (d7) Any liability under any obligations employment, severance, retention or termination agreement with any Current Employee of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, Related Persons; (8) Any liability of Seller to (a) any shareholder of Seller or retention (b) any Related Person of Seller or severance pay to the extent attributable to the period any shareholder of Seller prior to the Effective Time or which may become payable as a result of the Closing; (e9) except as otherwise expressly provided in Section 7.10, any liabilities under Any liability arising out of or relating to any Benefit Plan at any time maintainedemployee grievance which arose or was caused by events occurring prior to the Closing Date, contributed whether or not the affected Employees are hired by the Buyer; (10) Any liability to or required distribute to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal shareholders or partial withdrawal from otherwise apply all or termination any part of any Benefit Planthe consideration received hereunder; (f11) except for Any liability (other than the Recoverable Assumed Liabilities) arising out of any Proceeding pending as of the Closing Date or commenced after the Closing Date, which Proceeding arises out of or relates to any liabilities occurrence or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets event happening on or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including Closing Date; (12) Any liabilities of Seller under this Agreement or any such Claims or Actionable Incidents disclosed in of the Seller Disclosure Schedulesother Acquisition Agreements; and (g13) any liabilities or obligations Any liability of Seller arising under based upon Seller’s acts or in connection with this Agreementomissions occurring after the Closing Date. Effective as of the Closing Date, any certificate or other document delivered in connection herewithSeller shall assume, and any from and after the Closing Date, shall pay, discharge, satisfy or perform when due all of the transactions contemplated hereby and therebyExcluded Liabilities.

Excluded Liabilities. Seller acknowledges that Notwithstanding anything to the sole contrary contained in this Agreement, except to the extent reflected on the Final Closing Statement, from and after Closing the Company will not have any Liability for the following liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) Any Liability for or with respect to any liabilities Indebtedness (other than any Assumed Indebtedness) or obligations account payable of the Company, in each case, as of immediately following the Closing, including any such Liabilities owed by the Company to Seller or any Affiliate of Seller; (b) Any Liability attributable to any assets, properties or Contracts that are not (i) owned or held by the Company or (ii) used in the Business; (c) Any Liability (i) for breaches (including any action, omission, event, occurrence or fact occurring or in existence which with notice or lapse of time may give rise to a breach) of any Material Contract occurring or existing on or prior to the Closing Date or (ii) for payments or amounts to the extent they have accrued or become due under any Material Contract on or prior to the Closing Date; (d) Any Liability for Taxes attributable to or imposed upon the Company, or attributable to or imposed upon its assets or the Business (i) for all Pre-Closing Tax Periods, (ii) with respect to any Straddle Period, for the portion of such Straddle Period that ends on and includes the Closing Date, but, with respect to real and personal property Taxes and similar ad valorem obligations, only to the extent such Straddle Period Taxes exceed the Seller Ad Valorem Tax Amount, (iii) as transferee or successor liability, by contract or pursuant to Applicable Laws, including Treas. Reg. § 1.1502-6 and similar provisions of state, local or non-U.S. Applicable Laws, relating to a Pre-Closing Tax Period or a Straddle Period, for the portion of such Straddle Period that ends on and includes the Closing Date, and (iv) from any income resulting from any election by the Company under Section 108(i) of the Code prior to the Closing Date; provided, that the payment of Transfer Taxes shall be governed by Section 6.7 hereof; (e) Any Liability relating to employment of any employees of the Company arising in the ordinary course of employment on or prior to the Closing Date, whether or not covered by workers’ compensation or other forms of insurance; (f) Any Liability arising as a result of any Proceeding initiated at any time, to the extent related to any Excluded Assetsaction or omission or event or occurrence or fact occurring or in existence on or prior to the Closing Date, including any Liability for (i) infringement or misappropriation of any Intellectual Property or any other rights of any Person (including any right of privacy or publicity) in any jurisdiction; (ii) breach of product warranties or any contractual or other warranties, whether express or implied or resulting from any course of dealing or conduct; (iii) injury, death, property damage or other losses arising with respect to or caused by products or services provided by the Company or the Business; or (iv) violations of any Applicable Laws (including federal and state securities laws and Gaming Laws); (bg) Any Liability under or arising out of any liabilities Company Benefit Plans or obligations of Seller in respect of Indebtednessany Benefit Related Agreement; (ch) any liabilities or obligations in respect of Taxes of Seller Any Liability for making payments or any Tax Affiliate failure to make payments of Seller, any kind to employees or contractors or any liability other service providers of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 the Business (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable including as a result of the ClosingTransactions, the termination of an employee by the Company or other claims arising out of the terms of employment with the Company) or with respect to payroll Taxes or any other employment Tax liabilities in any jurisdiction, including any failure to withhold or collect or pay over any such taxes to the relevant Governmental Entity, in each case, for periods prior to the Closing Date; (ei) except as Any Liability under Environmental Laws to the extent arising out of or resulting from the conduct of the Business or the ownership, operation or use of the assets of the Company, including the Owned Real Property, the Leased Real Property and the Additional Real Property, in each case, prior to the Closing Date; (j) Any Liability for Transaction Expenses to the extent not paid pursuant to Section 3.3(b) or otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (gk) Any Liability, whether or not specifically mentioned in this Section 3.9, to the extent arising out of or resulting from the conduct of the Business or the ownership, operation or use of the assets of the Company, in each case prior to the Closing Date, regardless of when any claim with regard to such Liability is made, but excluding to the extent any such Liability is covered by insurance proceeds paid for the benefit of the Company for such Liability (with the understanding that such liability shall remain an Excluded Liability as to any deductible or self-insured retention portion of any insurance coverage applicable thereto). For the avoidance of doubt, “Excluded Liabilities” does not include (i) the current liabilities of the Company to the extent reflected on the Final Closing Statement, (ii) any Assumed Indebtedness or (iii) any liabilities or obligations of Seller arising under or included in connection with this Agreement, any certificate or other document delivered in connection herewith, and any the Accrued Rent Payable Amount. The Excluded Liabilities about which the Company has Knowledge as of the transactions contemplated hereby and therebySigning Date include the matters listed on Schedule 3.9.

Excluded Liabilities. Seller acknowledges that Notwithstanding any other provision of this Agreement to the sole liabilities and obligations being assumed by Buyer are contrary, other than the Assumed Obligations Liabilities set forth in Section 2.3, Newco shall not assume and Seller shall not be liable for, and Credence shall retain and remain solely liable for and obligated to discharge and indemnify and hold Newco harmless for, all of the debts, expenses, Contracts, commitments, obligations and other liabilities and obligationsLiabilities of any nature whatsoever of Credence, including any of its Affiliates, the Business or the Purchased Assets (collectively, the “Excluded Liabilities”):), whether known or unknown, accrued or not accrued, fixed or contingent, including the following: (a) any liabilities or obligations of Seller to all Liabilities under Contracts, other than those first arising under the extent related to any Excluded AssetsAssumed Contracts after the Closing Date; (b) any liabilities Liability for Taxes attributable to or obligations imposed upon Credence or any Affiliate of Seller in respect Credence, or attributable to or imposed upon the Business or the Purchased Assets for any Pre-Closing Tax Period and any liability or obligation of IndebtednessCredence or any Affiliate of Credence for Taxes of any person imposed on Credence or any Affiliate of Credence pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision under any local, state or foreign law), as a successor, by contract or otherwise; (c) any liabilities Liability for accounts or obligations in respect trade payables of Taxes Credence, any Liability of Seller any Affiliate of Credence, and any Liability of Credence for broker or investment banking fees or any Tax Affiliate other expenses of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, outside advisors incurred in connection with the transactions contemplated by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8this Agreement; (d) any obligations Liability of Seller Credence or any Affiliate of Credence attributable to any Compensation and Benefit Plan maintained by Credence or any Affiliate of Credence or related to any Designated Employee (except the PTO expressly assumed hereby), including any earned or due commissions, salaries, bonuses or other employment related payments related to such Designated Employee’s employment by Credence or any of its Subsidiaries, and all amounts due to any other employees, consultants or other service providers engaged by Credence or any of its Subsidiaries related to the Business or otherwise arising from or related to such engagement; (e) all Environmental Liabilities, regardless of whether such Environmental Liabilities shall arise or become known before, on or after the Closing Date; (f) any claim or Liability arising from the breach or infringement or alleged breach or alleged infringement of third party intellectual property rights as a result of the conduct of the Business by Credence or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result use of the Closing; (e) except as otherwise expressly provided in Section 7.10, Intellectual Property of Credence or any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to of its Affiliates by Seller Credence or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (fg) except for all Liabilities related to any litigation involving the Recoverable Purchased Assets arising out of or related to the conduct of the Business or use of any Purchased Assets by Credence or its Affiliates on or prior to the Closing Date; (h) all Liabilities set forth on the Credence Disclosure Schedule unless expressly set forth in Section 2.3; (i) all Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving other than the Assumed Liabilities, relating to the Purchased Assets or the Designated Employees arising out of the operation or ownership of the Business filed or arising from an Actionable Incident occurring the employment of the Designated Employees, in each case, prior to or as of the Effective TimeClosing Date regardless of when such Liabilities become known, including and all Liabilities, other than the Assumed Liabilities, relating to the employment or the termination of employment of any such Claims employees of Credence or Actionable Incidents disclosed in any of its Subsidiaries; (j) all Liabilities set forth on Schedule 2.4(j); (k) all Liabilities relating to the Seller Disclosure SchedulesExcluded Assets; and (gl) any liabilities Liability of Credence or obligations any Affiliate of Seller arising under or Credence incurred in connection with the making or performance of this Agreement, any certificate or other document delivered in connection herewith, Agreement and any of the transactions contemplated hereby and therebyhereby, except as provided in Section 5.10(d) hereof.

Excluded Liabilities. Seller acknowledges that Except as expressly provided to the sole liabilities contrary in StctiQn-L3-above, Buyer is not assuming and obligations being assumed by under no circumstance shall Buyer are be obligated to pay or assume, and none of the Assumed Obligations and Seller Assets shall retain all other liabilities and obligationsbe or become liable for or subject to, including any liability of Seller, whether known or unknown, fixed or contingent, recorded or unrecorded, including, without limitation, the following (collectively, the “"Excluded Liabilities”"): (aA) any indebtedness and other obligations or guarantees of Seller, including, without limitation, current liabilities of Seller and those listed on Schedule 1.4(a); (B) federal, state, or local tax liabilities or obligations of Seller including, but not limited to, real property, personal and ad valorem taxes in respect of periods prior to the extent related to any Excluded AssetsClosing; (bC) any liabilities or obligations arising out of any breach by Seller in respect at any time of Indebtednessany contract or commitment, whether or not assumed by Buyer; (cD) any liability arising out of or in connection with claims for acts or omissions of Seller or Seller's partners, members, employees, agents, or independent contractors, which allegedly occurred prior to or as of Closing, including, without limitation, all malpractice and general liability claims, whether or not same are pending, threatened, known or unknown; (E) liability prior to the Closing Date for any and all claims by or on behalf of Seller's employees, including, without limitation, liability for any pension, profit sharing, deferred compensation or any other employee health and welfare benefit plans, liability for any EEOC claim, OSHA claim, employment discrimination claim (whether based on sex, age, race, or otherwise), wage and hour claim, unemployment compensation claim, worker's compensation claim and the like, and liability for all employee wages and benefits, including, without limitation, accrued vacation, sick leave and holiday pay and taxes or other liability related thereto; (F) liabilities or obligations in respect of Taxes contracts or agreements of Seller or any Tax Affiliate of Sellerwhich are not described in, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, Schedule 4.4 and not expressly assumed in writing by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure SchedulesBuyer; and (gG) any liabilities debt, obligation, expense, or obligations liability of Seller arising under out of or incurred in connection with this Agreementrespect of any transaction of Seller occurring after Closing or for any violation by Seller of any law, regulation, or ordinance at any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebytime.

Excluded Liabilities. Notwithstanding any other provision of this Agreement to the contrary, the Buyer is not assuming, and the Seller acknowledges that shall pay, perform, discharge or otherwise satisfy, the sole following liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities all Taxes arising from or obligations of Seller with respect to the extent related Transferred Assets or the operation of the Systems that are incurred in or attributable to any Excluded Assetsperiod, or any portion of any period, ending on or prior to the Closing Time (except as otherwise provided in this Agreement); (b) any liabilities or obligations of liability specifically retained by the Seller pursuant to Section 5.4 arising in respect of Indebtednessor relating to the System Employees or any Employee Plan, including all liabilities for Retention Bonuses, if any; (c) any liabilities liability or obligations in respect obligation accruing under the Contracts or otherwise out of Taxes the conduct or operation of Seller the Systems or ownership or use of the Transferred Assets prior to the Closing Time unless and to the extent (1) assumed under Section 2.3 or (2) such liability or obligation is offset by an asset or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502post-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8Closing income related thereto; (d) any indebtedness of the Seller for borrowed money or guarantees thereof outstanding as of the Closing Time; (e) any liability or obligation relating to an Excluded Asset (including any liability under any Excluded Contract (except for liabilities for Launch Fees or other advance promotional payments under any Programming Agreement)) or any other Excluded Liability; (f) any liability or obligation (whether known or unknown) arising under any Environmental Laws or relating to any Hazardous Substances, except to the extent the facts, events or circumstances underlying such liability or obligation is first created by the Buyer’s operation of the Systems or the Transferred Assets from and after the Closing or are attributable to facts, events or circumstances created or first occurring after the Closing and, notwithstanding anything to the contrary in this Agreement, irrespective of whether such liability or obligation attaches to the Seller, any System, or Buyer or any of their respective Affiliates in the first instance; (g) all liabilities and obligations (A) relating to or arising under any “employee benefit plan” (as defined in Section 3(3) of ERISA) or any other benefit plan, program or arrangement (including any Employee Plan) at any time maintained, sponsored or contributed to by the Seller or any ERISA Affiliate, or with respect to which Seller or any ERISA Affiliate has any current or potential liability or obligation, or (B) pertaining to the employment by, or termination from employment with, the Seller or any ERISA Affiliate, of any individual (including any Transferred Employee), including any liability or obligation relating to payroll, workers’ compensation or unemployment benefits, other than any such liability or obligation expressly and to the extent included in Assumed Liabilities; (h) any liability arising out of or relating to any employee grievance that arises out of or relates to any event or occurrence prior to the Closing, whether or not the affected System Employees are hired by the Buyer; (i) any liability or obligation owing (i) by any System to the Seller or its Affiliates or Related Persons or (ii) by the Seller to any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursementor Related Persons; (j) any liability to distribute to any stockholders of the Seller, or retention otherwise apply, all or severance pay to any part of the extent attributable to the period prior to the Effective Time or which may become payable consideration received hereunder; (k) any liability arising out of any legal proceeding pending as a result of the Closing; (el) except as otherwise expressly provided in Section 7.10, any liabilities under liability arising out of any legal proceeding commenced after the Closing and arising out of or relating to any Benefit Plan at occurrence or event happening prior to the Closing; (m) any time maintained, contributed to liability arising out of or required to be contributed to resulting from (A) compliance or noncompliance by the Seller or any System (during periods prior to Closing) with any Law or (B) any tort or act of its Affiliates, or under which infringement committed by the Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect System (during periods prior to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit PlanClosing); (fn) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in liability of the Seller Disclosure Schedulesunder this Agreement or any other document executed in connection with the Transaction; (o) any liability of the Seller based upon acts or omissions of the Seller occurring after the Closing; and (gp) any liabilities liability for fees, costs and expenses incurred by the Seller or obligations of Seller arising under or any System in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby by this Agreement and therebythe Ancillary Agreement.

Excluded Liabilities. Seller acknowledges that Buyer does not assume and will not be obligated to pay, perform, or otherwise discharge any of the sole following liabilities and or obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller for any breach or default by Seller prior to the Effective Time, or any event prior to the Effective Time, which after the giving of notice or passage of time or both would constitute a default or breach by Seller, of or under the Business Agreements, Franchises, the Transferable Permits, or the Transferable Environmental Permits, except to the extent that such liability or obligation is taken into account in respect of Indebtednessdetermining the Adjustment Amount; (c) all trade accounts payable and other accrued and unpaid current expenses in respect of goods and services incurred by or for the Business in the ordinary course of business to the extent attributable to the period prior to the Effective Time (the “Accounts Payable”); (d) any liabilities or obligations of Seller in respect of indebtedness for borrowed money; MINNESOTA GAS (e) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.87.7; (df) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable (except, with respect to vacation days and severance pay, as a result of the Closingotherwise provided in Section 7.9); (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (fg) except for the Recoverable Assumed Environmental Liabilities, (i) any liabilities or obligations arising from any Claim lawsuit (including any workers’ workers compensation claim) against Seller involving the Business filed prior to the Effective Time, (ii) any liabilities or obligations arising from any lawsuit (including any workers compensation claim) arising from an Actionable Incident related to the Purchased Assets or the Business filed or arising from an Actionable Incident occurring which occurred prior to the Effective Time, including or (iii) any such Claims criminal fines or Actionable Incidents disclosed in penalties imposed by a Governmental Entity resulting from (A) an investigation or proceeding before a Governmental Entity regarding acts which occurred prior to the Effective Time, or (B) intentional fraud by Seller Disclosure Schedules; andor its Affiliates prior to the Effective Time; (gh) except as otherwise provided in Section 7.9, any liability or obligation of Seller or an ERISA Affiliate of Seller under or in connection with any of the Benefit Plans, including under any deferred compensation arrangement or severance policy or any obligation to make any parachute or retention payment; (i) any grievance arising out of or under any Collective Bargaining Agreement, or other collective bargaining agreement applicable to any of the Business Employees, prior to the Effective Time, and except as provided in Section 7.9, any other liabilities or obligations of Seller relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination, by Seller of any individual, to the extent the circumstances giving rise to the liability or obligation occurred prior to the Effective Time; (j) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection in herewith, and any of the transactions contemplated hereby and thereby; and (k) the amount of any disallowance (whether reflected in a required rate adjustment or a denial of a requested rate adjustment or otherwise affecting Buyer) in any purchased gas adjustment proceeding, to the extent the disallowance results from a finding by the PUC of an imprudent gas decision made by Seller prior to the Effective Time.

Excluded Liabilities. Seller acknowledges that the sole liabilities Buyer shall not assume and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligationsnot be responsible to pay, including (collectively, the “Excluded Liabilities”): (a) perform or discharge any liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 4.03 (collectively, the extent related to "Excluded Liabilities"), including all of the following Liabilities and obligations: (a) any Excluded AssetsLiabilities or obligations of the Seller, other than the Assumed Liabilities; (b) any liabilities Liabilities or obligations for (i) Taxes relating to the operation of the Business or ownership or use of the SpinCo Assets or Purchased Assets on or prior to the Effective Time and (ii) any other Taxes of Seller or any stockholders or Affiliates of Seller (including Taxes allocated to Seller under Section 8.15 and Taxes arising out of or in respect of Indebtednessconnection with the Internal Reorganization, Distribution or Merger); (c) except as specifically provided in Section 8.05, any liabilities Liabilities or obligations in respect of Taxes of Seller relating to or arising out of (i) the employment, or termination of employment, (A) of any Employee on or prior to the Effective Time, or, (B) of any Employees who are not Transferred Employees, after the Closing, or (ii) workers' compensation claims or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes other claims of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for Employee which Buyer is expressly liable pursuant relate to Section 3.4 or Section 7.8events occurring prior to the Effective Time; (d) except as specifically provided in Section 8.05, any obligations Liabilities or obligation of Seller or any of its current or former Affiliates for wages, vacation pay, relating to or arising out of Benefit Plans or Seller's or any of its current or former Affiliates' employment of any employee or other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closingservice provider; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities Liabilities or obligations of Seller arising under or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, any certificate or the other document delivered in connection herewith, Transaction Documents and any of the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others; (f) any Liability for any Action or threatened Action relating to the Business arising out of transactions or events occurring prior to the Closing Date; (g) any Liability for any Action or threatened Action brought by any stockholder of Seller, including in connection with this Agreement and the transactions contemplated thereby; and (h) any Liabilities and obligations relating to Specified Benefits.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) Notwithstanding Section 2.4 hereof, and without any liabilities implication that Acquisition Sub or obligations the Purchaser is assuming any Liability not expressly identified in Section 2.4, the following Liabilities (the "Excluded Liabilities") of AGI, the Seller to and NDI are excluded and will not be assumed or discharged by Acquisition Sub or the extent related to Purchaser: (i) any Excluded AssetsLiability under any non-competition, consulting, employment, severance, change of control, collective bargaining or similar agreement, commitment or arrangement, whether written or oral; (bii) except as provided in Section 3.3 hereof, any Liability for any Federal, state, local or foreign Taxes, including, without limitation, (A) any liabilities liability for income, transfer, sales, use or obligations other Taxes arising in connection with the Transfer of Seller in respect the Transferred Assets and the consummation of Indebtedness; the other transactions contemplated by this Agreement, and (cB) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for the unpaid Taxes of any other Person under Treasury Regulation section Treas. Reg. (S) 1.1502-6 (or any similar provision of state, local, local or foreign law) ), as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (diii) any obligations of Liability for expenses incurred by, or for claims made against, AGI, the Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, NDI in connection with or retention resulting from or severance pay to the extent attributable to the period transactions contemplated by this Agreement; (iv) any Liability for any investment banking, brokerage or similar charge or commission, or any attorneys' or accountants' fees and expenses, payable or incurred by AGI, the Seller or NDI in connection with of this Agreement or the transactions contemplated hereby; (v) any Liability arising out of any activities undertaken by AGI, the Seller or NDI after the Closing Date; (vi) any Liability for any personal injury, property damage, product liability or breach of warranty claim caused by or arising from any goods or products manufactured, processed, sold, distributed or shipped by AGI, the Seller or NDI on or prior to the Effective Time or which may become payable as a result of the ClosingClosing Date; (evii) any Liability arising out of any tortious or unlawful conduct; (viii) any Liability for money borrowed; (ix) except as otherwise expressly provided in Section 7.102.10 hereof, any Liability arising under any Environmental Law resulting from any action or omission occurring, or state of facts existing, on or prior to the Closing Date; (x) any Liability under any group life insurance or health benefit program maintained on behalf of any employees of AGI, the Seller, NDI or Neyco, or their eligible dependents in connection with any accident occurring or any claim incurred (any such claim being deemed incurred in accordance with Section 12.1(e) hereof) on or prior to the Closing Date; (xi) any Liability arising out of any workmen's compensation claims or proceedings, discrimination claims or proceedings, property damage or personal injury claims, benefits or severance or other liabilities or obligations in connection with any accident or incident occurring on or prior to the Closing Date to employees or former employees of AGI, the Seller or NDI; (xii) except as provided in Section 12.1(c) hereof, any Liability under any "employee benefit plan" (as that term is defined in Section 3(3) of ERISA) or any other plans, programs or arrangements of any kind relating to employee benefits sponsored or maintained by AGI, the Seller or NDI; (xiii) any Liability for any Action arising on or prior to the Closing Date from the conduct of the Business; (xiv) any Liability relating to any Benefit Plan at any time maintained, contributed to current employee of the Seller who does not accept the Purchaser's or required to be contributed to by Seller or any Acquisition Sub's offer of its Affiliates, or under which Seller or any Affiliate has or may incur liabilityemployment on the Closing Date, or any contributionsformer employee of AGI, the Seller or NDI, including, without limitation, any costs or expenses incurred under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, any health benefits or liabilities thereforany severance, termination, unemployment insurance or any liability with respect other similar costs or expenses relating to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including termination of employment of any such Claims or Actionable Incidents disclosed in employee by any Person other than the Seller Disclosure SchedulesPurchaser; and (gxv) any liabilities Liability relating to any lease, contract, agreement, commitment, option or obligations understanding, whether oral or written, not assigned to and assumed by, or subcontracted by, the Purchaser or Acquisition Sub under this Agreement. (b) On the Closing Date the Purchaser or Acquisition Sub shall offer employment, on an employment-at-will basis, to each Business Employee at substantially the same salary or hourly wage as such Business Employee was receiving on the Closing Date. Except as specifically provided in the immediately preceding sentence, the Purchaser and Acquisition Sub shall be free to hire such persons, whether or not employees of the Seller, on such terms and conditions of employment, as the Purchaser or Acquisition Sub shall determine in the exercise of their sole discretion. Nothing in this Agreement shall establish any enforceable rights, legal or equitable, in any Person other than the parties hereto and as specifically provided in Article XI hereof, including, without limitation, any employee of AGI, the Seller or NDI, or any beneficiary of such employee, beyond those (if any) which constitute Assumed Liabilities pursuant to Section 2.4 hereof. Any claim, including any claim for benefits, asserted by or on behalf of any person with respect to such person's employment by the Purchaser or Acquisition Sub shall be governed solely by applicable employment policies and employee benefit plans, if any, which the Purchaser or Acquisition Sub may adopt after the Closing, as construed in accordance with applicable Law. (c) Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any contract, instrument, order or any claim or right, or any benefit arising under thereunder or resulting therefrom (collectively, the "Restricted Contracts"), if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach thereof or in connection any way affect the rights of AGI, the Seller or NDI thereunder. If such consent is not obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of AGI, the Seller or NDI thereunder, such parties will cooperate with this Agreementthe Purchaser and Acquisition Sub in any arrangement designed to provide for the Purchaser or Acquisition Sub the benefits under any such Restricted Contract, any certificate or other document delivered in connection herewithincluding, and any without limitation, enforcement for the benefit of the transactions contemplated hereby Purchaser or Acquisition Sub of any and therebyall rights of AGI, the Seller or NDI against a third party thereto arising out of a breach or cancellation by such third party.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations and Seller shall retain all Liabilities, the Purchaser assumes no liabilities or other liabilities and obligations, including (collectivelycommercial or otherwise, the “Excluded Liabilities”):of (a) any liabilities or obligations liability of the Seller to the extent related with respect to any Excluded Assetstransaction occurring after the Closing Date; (b) any liabilities liability of the Seller for federal, state or obligations local taxes, fees, assessments or other similar charges (including, without limitation, income taxes, real estate taxes, payroll taxes, except those accrued by Seller as of Seller in respect of Indebtednessthe Closing Date, sales and use taxes and personal property taxes); (c) any liabilities liability for losses, personal injury, property damage or obligations in respect other damages of Taxes any kind whatsoever, whether suffered or incurred by the Seller's customer or Purchaser's customer or any other person, arising out of products manufactured or sold by the Seller or any Tax Affiliate of Sellerservices performed by the Seller on or prior to the Closing Date, where the occurrence giving rise to such liability occurs on or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (before the Closing, whether the Claim is asserted before or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8after the Closing; (d) except for Seller's obligations related to the employment agreements between Seller and Scot▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Jeff ▇▇▇▇▇▇▇, ▇▇ich will be assumed by Purchaser at Closing, any obligations of Seller responsibility, liability or any of its Affiliates for obligation with respect to salary, wages, sick pay, vacation pay, other paid time offseverance pay, employment Taxessavings plans, bonuses, other incentive deferred compensation, commissionsany of Seller's pension, expense reimbursementprofit-sharing, retirement, and other fringe benefit plans, or retention or severance pay to other obligations for the extent attributable to the period prior to the Effective Time or which may become payable as a result benefit of any personnel of the ClosingSeller including pension benefits accrued (vested or unvested), or arising out of their employment through the Closing Date and/or their termination of employment by the Seller upon the consummation of the transactions contemplated hereby, for which the Seller shall be liable and, as to which Purchaser shall have no responsibility whatsoever arising either before or after the Closing Date; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating liability of any kind whatsoever resulting from the failure of the Seller to comply with any Benefit Plan at any time maintained, contributed Requirement of Law applicable to or required to be contributed to by the Seller or any the conduct of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planthe Business; (f) any liability under any Assumed Contract to the extent such liability arises out of the Seller's failure to perform its obligations thereunder prior to the Closing Date; (g) except for any liability related to the Recoverable Liabilitiesrevolving line of credit and letters of credit to be assumed by Purchaser in accordance with Section (h) subject to Sections 3.5(a), (b) and (d), any liabilities or obligations liability arising from any Claim (including any workers’ compensation claim) involving out of the Purchased Assets or the operation of Seller's Business filed or arising from an Actionable Incident occurring prior to the Effective TimeClosing Date; (i) any loss, including cost, or damage of any such Claims kind arising from or Actionable Incidents disclosed in related to the Seller Disclosure Scheduleslitigation set forth on Schedule 5.8 hereof; and (gj) any liabilities liability whatsoever relating to an Excluded Asset. Seller shall have any and all responsibility to all creditors and all third parties and to the Purchaser with respect to, and shall pay, discharge and perform when due, any liability or obligations obligation of Seller arising under or in connection with this Agreementnot expressly assumed by the Purchaser and, any certificate or other document delivered in connection herewithwithout limiting the generality of Section 13 hereof, Seller and any each of the transactions contemplated hereby Shareholders, jointly and therebyseverally, shall indemnify and hold harmless the Purchaser from and against any and all cost, loss, or expense (including reasonable attorneys' fees and expenses) arising from such obligations or liabilities not otherwise assumed by Purchaser.

Excluded Liabilities. Seller acknowledges that The Assumed Liabilities shall exclude and Buyer shall not assume or be liable for any of the sole liabilities following liabilities, contracts, commitments and other obligations of the Sellers as the same shall exist at the Closing Date (all of which liabilities, contracts, commitments and obligations being assumed by Buyer are hereinafter referred to as the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “"Excluded Liabilities”"): (a) any obligations and liabilities or obligations of Seller to the extent related to any Excluded AssetsSellers arising under this Agreement; (b) any liabilities or obligations of Seller Sellers or the Transferred Subsidiaries for expenses incurred in respect connection with the sale of Indebtednessthe Assets pursuant hereto or other transactions contemplated hereby, including without limitation, the fees and expenses of counsel, investment advisors and independent auditors; (c) any liabilities or obligations in respect of Taxes Sellers or a Transferred Subsidiary to Mark ▇▇ ▇▇ any of Seller its subsidiaries or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwiseaffiliates, except for Taxes for which Buyer is expressly liable pursuant as may be provided in any transition services agreement necessary to Section 3.4 or Section 7.8implement the provisions of this Agreement; (d) any obligations liability or obligation of Seller Sellers or the Transferred Subsidiaries for borrowed money or any of its Affiliates for wagesnotes, vacation paybonds, indentures, mortgages or other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, contracts or retention agreements representing or severance pay to the extent attributable to the period prior to the Effective Time evidencing such indebtedness or which may become payable as a result of the Closingany guarantees thereof; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect of the Sellers not otherwise assumed by the Buyer pursuant to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination Section 1.03 hereof arising out of any Benefit Planactions, inactions, transactions by Sellers or events occurring after the Closing Date; (f) except any liability arising out of the litigation or potential litigation described in Schedule 4.15, the defense or prosecution of which and all liability for damages, costs, fines and remedies related thereto shall be at the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving sole cost and liability of the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; andSellers; (g) any all governmental liabilities and obligations arising prior to the Closing Date related to, associated with or obligations arising out of Seller the Sellers' or the Transferred Subsidiaries' ownership, operation, use or control of their respective assets and properties, whether arising under Environmental Laws or in connection with this Agreementcommon law principles, including, but not limited to, any certificate action by any governmental authority or other document delivered any third party which seeks to impose or recover costs relating to the discharge, disposal, release, threatened release or escape of any Regulated Materials at, on or from (i) any real property now or previously owned or operated by Sellers or the Transferred Subsidiaries, including surface water, soil and groundwater thereon, thereunder or adjacent thereto; or (ii) any real property at which Regulated Materials (as defined in connection herewith, and any of the transactions contemplated hereby and thereby.Section 4.19) generated by operations

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations Liabilities, Buyer shall not assume or be liable for any liabilities or obligations of Seller, direct or indirect, fixed, contingent or otherwise, known or unknown, which exist at the Effective Time or which arise thereafter as a result of any act, omission or circumstance taking place prior to the Effective Time, and whether or not the same are reflected on Seller Balance Sheet. Furthermore, notwithstanding anything to the contrary stated in Section 3.1, Buyer shall retain all other not assume or be liable for any of the following liabilities and or obligations, including (collectively, the “Excluded Liabilities”):: (a) any of Seller’s liabilities or obligations of under any Seller Contract which is not an Assumed Contract, or under any Assumed Contract to the extent related such liabilities or obligations arise prior to any Excluded Assetsthe Effective Time; (b) any liabilities indebtedness and any trade or obligations other current liability of Seller which is not within the liabilities described in respect of IndebtednessSection 3.1(b); (c) any and all liabilities or obligations to NWT in respect excess of Taxes the amount of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8;the NWT Receivable; and (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the ClosingTax imposed on Seller; (e) except as otherwise expressly provided set forth in Section 7.103.1(c), any of Seller’s liabilities under or obligations relating to the employment of its employees or relating to any Benefit Plan at any time maintainedSeller benefit plan, contributed including but not limited to unpaid or required to be contributed to by Seller or any of its Affiliatesunperformed wages, or under which Seller or any Affiliate has or may incur liabilitysalaries, or any contributionspayroll taxes, sick pay, vacation pay, fringe benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan;and other employee benefits (f) except for the Recoverable Liabilitiesas expressly set forth in Section 3.1(c), any of Seller’s liabilities or obligations for any severance, “parachute” or other similar payment to any officer, director or employee of Seller arising by virtue of the transactions contemplated herein; (g) any of Seller’s liabilities or obligations under any Applicable Law or Order; (h) any of Seller’s liabilities or obligations arising from the litigations or other matters described in Schedule 6.8; (i) any Claim (including any workers’ compensation claim) involving of Seller’s liabilities or obligations for Taxes, expenses or fees incident to or arising out of the Purchased Assets negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation of the consummation) of the transactions contemplated hereby, including, without limitation, all attorney’s and accountant’s fees; (j) any of Seller’s liabilities or obligations arising outside of the ordinary course of the Business filed or otherwise arising from an Actionable Incident occurring prior to by reason of any breach of contract, tort or infringement of the rights of another; (k) any of Seller’s liabilities or obligations which would not have existed had each of Seller’s representations and warranties been true as of the date hereof and as of the Effective Time, including any such Claims or Actionable Incidents disclosed Time and had Seller complied with each of its covenants contained in the Seller Disclosure Schedules; andthis Agreement; (gl) any of Seller’s liabilities or obligations of any nature to any past or present shareholder of Seller arising under or in connection with this Agreement, holder of any certificate or other document delivered in connection herewith, and any indebtedness of the transactions contemplated hereby and thereby.Seller; and

Excluded Liabilities. Seller acknowledges that Except as provided in Section 3.2 and notwithstanding anything else to the sole liabilities contrary contained herein, the Sellers shall retain, and obligations Buyer is not assuming and shall not be liable for any Liabilities of Sellers or other Affiliates of Sellers, including, without limitation, any Liabilities (i) under Contracts which shall not have been assigned to Buyer pursuant to this Agreement (including, but not limited to, any union agreements); (ii) for indebtedness for borrowed money; (iii) by reason of or arising as the result of any default or breach by Sellers of any Contract, for any penalty assessed against Sellers under any Contract or relating to or arising out of any event which with the passage of time or after giving of notice, or both, would constitute or give rise to such a breach, default or penalty, whether or not such Contract is being assigned to and assumed by Buyer are pursuant to this Agreement; (iv) the Assumed Obligations and Seller shall retain all other liabilities and obligationsexistence of which would conflict with or constitute a breach of any representation, including warranty, covenant or agreement of Sellers contained herein; (collectively, the “Excluded Liabilities”): (av) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller shareholder or any Tax ERISA Affiliate of Sellers, to any present or former employee, officer or director of or consultant to Sellers or their Affiliates (or independent contractor retained by Seller), or to any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (Employee Benefit Plan sponsored or similar provision of state, local, or foreign law) as a transferee or successor, maintained by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller Sellers or any of its Affiliates for wagesERISA Affiliate, including, without limitation, any bonuses, vacation or sick pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention any termination or severance pay related to Sellers or Sellers' Affiliates' employees, and any post retirement medical benefits or other compensation or benefits; (vi) relating to the extent attributable to execution, delivery and consummation of this Agreement and the period prior to the Effective Time or which may become payable transactions contemplated hereby, including, without limitation, any and all Taxes incurred as a result of the Closing; sale contemplated by this Agreement; (evii) except for any Taxes of the Sellers including federal, state or local taxes imposed as otherwise expressly provided in Section 7.10a result of being or having been a member of a group filing a combined, consolidated or affiliated return); (viii) relating to or arising out of any environmental matter, including, without limitation, any liabilities under violation of any environmental law or any other law relating to any Benefit Plan at any time maintainedhealth and safety of the public or the employees of Sellers or Sellers' Affiliates; (ix) relating to, contributed to or required to be contributed to arising out of, services rendered by Seller Sellers or any of its Sellers' Affiliates, or under which Seller the conduct or any Affiliate has operation of the business of Sellers or may incur liabilitySellers' Affiliates, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective TimeClosing Date; or (x) relating to the Excluded Assets (collectively, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby"Excluded Liabilities").

Excluded Liabilities. Seller acknowledges that Notwithstanding any provision in this Agreement or any other writing to the sole contrary, the Purchasing Entities are assuming only the Assumed Liabilities and are not assuming any other liability or obligation of the Selling Entities (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising or asserted hereafter. All such other liabilities and obligations being assumed shall be retained by Buyer are and remain obligations and liabilities of the Assumed Obligations and Seller shall retain all other liabilities and obligations, including Selling Entities (collectively, the “Excluded Liabilities”):“). Without limiting the foregoing, none of the following shall be Assumed Liabilities for the purposes of this Agreement: (a) Any debt, liability or obligation of the Selling Entities in respect of the Business for Taxes that relate to periods ending on or prior to the Transfer Date (including any liabilities Taxes that arise as a result of the Transactions), except as otherwise provided in Section 8.7(b); (b) Any intercompany payable balances in respect of the Business due to UNOVA or obligations any of Seller its subsidiaries (other than intercompany trade payables between the ▇▇▇▇▇▇ Group); (c) Any claim, debt, liability or obligation for workers compensation, automobile or general liability in respect of the Business, to the extent such claims arise from events, actions or occurrences on or prior to the Transfer Date, other than a claim, debt, liability or obligation to which Section 1.6(j) applies; (d) Any claim, debt, liability or obligation to the extent related to any of the other Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller Liabilities or any of its Affiliates for wages, vacation paythe Excluded Assets, other paid time offthan a claim, employment Taxesdebt, bonuses, other incentive compensation, commissions, expense reimbursement, liability or retention or severance pay obligation to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the ClosingSection 1.6(j) applies; (e) except as otherwise expressly provided in Section 7.10Any liabilities of the Selling Entities arising under, any liabilities under or relating to any Benefit Plan at any time maintainedthe execution, contributed to delivery or required to be contributed to by Seller or any of its Affiliatesconsummation of, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planthis Agreement and the transactions contemplated hereby; (f) except Any liabilities of the Selling Entities for Indebtedness (as defined by Section 3.8(h)), including, without limitation, the Recoverable LiabilitiesIndebtedness set forth on Schedule 3.8(h) and Schedule 3.2(d); (g) Any claim, debt, liability or obligation under Employee Benefit Plans other than the Assumed Liabilities set forth in Sections 1.6(d), 1.6(e), 1.6(j) and 1.6(n); (h) Any claim, debt, liability or obligation under the UNOVA Pension Fund, other than in respect of benefits transferred to the ▇▇▇▇▇▇ Pension Plan, whether before, on or after the Transfer Date (which transferred benefits shall include any claim, debt, liability or obligation in respect of the provision of those benefits in a manner complying with Article 141 (formerly Article 119) of the Treaty of Rome and Section 62 of the Pensions Act 1995); (i) Any claim, debt, liability or obligation for Product Liability arising from the use or operation of products manufactured, sold or serviced (in whole or in part) in the Business to the extent such claims arise from events, actions or occurrences on or prior to the Transfer Date; (j) Environmental Liabilities arising from or relating in any way to (i) actions occurring or conditions, whether known or unknown, existing on or before the Transfer Date, where such actions or conditions constitute a violation of Environmental Laws, or (ii) with respect to the Waynesboro Facility and South Beloit Facility, which the Purchasing Entities will be leasing from the Selling Entities after the Transfer Date, actions occurring or conditions coming into existence after the Transfer Date to the extent such actions or conditions are not caused by the Purchasing Entities. For purposes of this Section 1.7(j), the known contamination on the Waynesboro Facility, including both the contamination being addressed by the Selling Entities in accordance with Pennsylvania’s Act 2 voluntary cleanup program and the chlorinated volatile organic compound contamination that has migrated onto the Waynesboro Facility from the adjacent Teledyne facility, shall be deemed a condition existing before the Transfer Date and to constitute an Excluded Liability; (k) All claims, debts, liabilities and obligations pursuant to violations of applicable Laws arising from, by or in connection with the Selling Entities, the Business, the Purchased Assets, or the Real Property, in each case occurring or existing on or before the Transfer Date, other than claims, debts, liabilities or obligations to which Section 1.6(j) applies; (l) Those pending or threatened litigation matters identified on Schedule 3.14; (m) Any actions, claims, proceedings, losses, damages, payments, penalties, costs or expenses suffered or incurred in relation to or arising out of any personal injury as a result of a person’s exposure at any time before the Transfer Date to any and all Contaminants (as defined in Section 1.6(m)) present, discharged or released at, or migrating from any property owned, occupied, controlled or used by the Selling Entities in respect of the Business; provided, however, that for any personal injury that is determined to have been caused by exposure to Contaminants as described in this subsection 1.7(m) that relates to periods of exposure before and after the Transfer Date, the loss arising from any Claim (including any workerssuch personal injury shall be deemed to have occurred ratably during the entire period of such exposure, and the Selling Entities’ compensation claim) involving liability for such injury shall be limited to a pro rata portion of the Purchased Assets or losses based on the Business filed or arising from an Actionable Incident occurring period of exposure that occurred prior to the Effective TimeTransfer Date; (n) all claims, including any such Claims or Actionable Incidents disclosed losses, debts, liabilities and obligations for compensation to Employees which are set forth in the Seller Disclosure Schedulescertain letter dated September 15, 2005, and updated as of September 22, 2005 from UNOVA to counsel for CFL; and (go) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any accrued bonuses payable to Continuing Employees as of the transactions contemplated hereby Transfer Date and therebyliabilities associated with amounts withheld from employee salaries to the extent withheld as of the Transfer Date.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Notwithstanding any other provision of this Agreement, except for the Assumed Obligations and Seller Liabilities expressly specified in Section 2.2, Buyer shall retain all other not assume, or otherwise be responsible for, any of Seller's liabilities and or obligations, including whether actual or contingent, matured or un-matured, liquidated or un-liquidated, known or unknown, or related or unrelated to the Business or the Assets, whether arising out of occurrences prior to, at or after the date hereof (collectively, the “"Excluded Liabilities”):"), which Excluded Liabilities include, without limitation: (a) 2.3.1 any liabilities liability or obligations of Seller obligation to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller in respect of Indebtedness; any employees or former employees of Seller including without limitation (ci) any liabilities employment agreement, whether or obligations in respect of Taxes of not written, between Seller or and any Tax Affiliate of Sellerperson, or (ii) any liability of Seller for unpaid Taxes of under any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8; (d) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan employee plan at any time maintained, contributed to or required to be contributed to by or with respect to Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s 's withdrawal or partial withdrawal from or termination of any Benefit Planemployee plan and (iii) any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation, which shall have been asserted on or prior to the Closing Date or is based on acts or omissions which occurred on or prior to the Closing Date; (f) except for the Recoverable Liabilities, 2.3.2 any liabilities liability or obligations obligation of Seller in respect of any Tax; 2.3.3 any liability arising from service and dealer work performed; 2.3.4 any liability arising from any Claim (including injury to or death of any workers’ compensation claim) involving person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from defects in products sold or services performed by or on behalf of Seller or any other person or entity on or prior to the Purchased Assets or the Business filed Closing Date, or arising from an Actionable Incident occurring any other cause, including without limitation any liabilities arising (on a date of occurrence basis or otherwise) on or prior to the Effective TimeClosing Date relating to the use or misuse of Equipment; 2.3.5 any liability or obligation of Seller arising out of or related to any Action against Seller or any Action which adversely affects the Assets and which shall have been asserted on or prior to the Closing Date or to the extent the basis of which shall have arisen on or prior to the Closing Date; 2.3.6 any liability or obligation of Seller resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by, this Agreement (including without limitation any such Claims liability or Actionable Incidents disclosed in obligation of Seller pursuant to Article VIII hereof); 2.3.7 any liability or obligation related to the Seller Disclosure SchedulesFacilities; 2.3.8 any liability or obligation arising out of any environmental law; 2.3.9 any liability or obligation arising under or related to any lease relating to the Real Property; and (g) 2.3.10 any liabilities or outstanding debt obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebySeller.

Excluded Liabilities. Seller acknowledges that the sole liabilities and obligations being assumed by Buyer are Except for the Assumed Obligations Liabilities expressly set forth in Section 2.3, neither Buyer nor Dayton shall be obligated under, nor shall Buyer or Dayton be or become liable for, any Liabilities of Parent and Seller shall retain all other liabilities and obligationsor their Affiliates (whether absolute, including accrued, contingent, liquidated or unliquidated, whether arising out of occurrences prior to, at or after the date hereof or otherwise) of any nature whatsoever, which are not Assumed Liabilities (collectively, the “"Excluded Liabilities”):"), which include, whether or not otherwise disclosed on any Disclosure Schedule, without limitation: (a) Any and all Liabilities to or in respect of any liabilities personnel or obligations former personnel of Seller or its Affiliates, including, without limitation under Section 8.5 hereof or pursuant to the extent related Transition Agreement and, without limitation, under (i) any employment agreement (whether oral or written) between Seller and any Person, (ii) any severance, retention, bonus or similar agreements and arrangements (whether oral or written), (iii) any Liability under any Employee Plan at any time maintained, contributed to or required to be contributed to by or with respect to Seller or Parent or under which Seller or Parent may incur Liability, or any Excluded Assetscontributions, benefits or Liabilities therefor, or any Liability with respect to Seller's withdrawal or partial withdrawal from or termination of any Employee Plan, (iv) any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation or is based on acts or omissions which occurred during their employment by Seller or its Affiliates and (v) any collective bargaining agreement; (b) any liabilities Any and all Liabilities of Parent or obligations of Seller in respect of Indebtedness; (c) any liabilities or obligations in respect of Taxes Tax, including, any Liability of Seller or any Tax Affiliate of Seller, or any liability of Seller Parent for unpaid Taxes of any another Person under Treasury Regulation section Regulations Section 1.1502-6 (or any similar provision of stateState, local, local or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable and, including pursuant to Section 3.4 8.6 hereof (c) Any and all Liabilities arising out of or Section 7.8related to any injury to or death of any Person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from defects in products manufactured or from services performed by or on behalf of Seller or arising out of or related to the Subject Business or Subject Assets on or prior to the Closing Date (or on or prior to the Second Closing Date, with respect to the Purchase Option Assets); (d) Any and all Liabilities of Seller arising out of or related to any Action against Seller or any Action which adversely affects the Subject Assets and which shall have been asserted on or prior to the Closing Date or to the extent the basis of which shall have arisen on or prior to the Closing Date (or on or prior to the Second Closing Date, with respect to the Purchase Option Assets); (e) Any and all Liabilities of Parent or Seller resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by, this Agreement, including, without limitation, any and all Liabilities of Parent or Seller pursuant to Article IX hereof, and any and all Liabilities and obligations of Parent or Seller arising out of, resulting from or relating or incident to its respective breach, non-fulfillment or failure to perform its covenants and agreements contained herein or incurred by it in connection with the consummation of the transactions contemplated hereby, including, without limitation, under Section 8.5 hereof or the Transition Agreement; (f) Any and all Liabilities resulting from or related or incident to Seller's failure to be qualified as a foreign corporation; (g) Any and all Liabilities related to any Former Facility; (h) Any and all Liabilities of Parent owed to Seller or by Seller owed to Parent or any other Affiliate; (i) Any and all Pre-Closing Environmental Liabilities, including, without limitation, Liabilities pursuant to Section 6.1(c) and 6.9 hereto; (j) Any and all Liabilities and obligations of Seller or any Parent arising out of, resulting from or relating to acts or omissions of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, Seller or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of Parent after the Closing; (ek) except All expenses of Seller or Parent (including, without limitation, all fees and expenses of its attorneys and other Representatives) and all fees, costs and expenses agreed to be paid by Seller or Parent under Section 8.5 and the Transition Agreement, including, without limitation, all Facility Costs (as otherwise expressly provided defined in Section 7.10the Transition Agreement), any liabilities under incurred in connection with this Agreement and the transactions contemplated hereby; (l) All brokerage fees, finder's fees and similar fees payable by Seller or Parent in connection with this Agreement and the transactions contemplated hereby; (m) Any and all Liabilities and obligations of Seller or Parent under, arising out of or relating to any Benefit Plan at any time maintainedthose Contracts, contributed Leases, Permits and other commitments not specifically Purchased by Buyer pursuant to or required to be contributed to by Seller or any of its AffiliatesSection 2.1, or under which Seller or any Affiliate has or may incur liabilityincluding, or any contributionswithout limitation, benefits or liabilities therefor, or any liability with respect to Seller’s any product liability or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planwarranty claim; (fn) except for the Recoverable Liabilities, any liabilities Any and all Liabilities and obligations of Seller or obligations Parent arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets out of or the Business filed or arising from an Actionable Incident occurring prior relating to the Effective TimeExcluded Assets; (o) Any and all Liabilities and obligations of Seller or Parent arising out of or relating to violations of Regulations, including including, without limitation, under or pursuant to Section 9.11 hereof; (p) Any and all Liabilities related or incident to, arising out of or resulting from the transfer, assignment or sublease of the Contracts set forth on SCHEDULE 2.1(f) attached hereto and the Leases set forth on SCHEDULE 2.1(g) attached hereto; (q) Any and all Liabilities related to, arising out of or resulting from the closure or vacating, if any, of the Facilities pursuant to the Transition Agreement, including, without limitation, with respect to personnel or under any such Claims Regulation (including, without limitation, WARN or Actionable Incidents disclosed in any other federal, state or local requirement); (r) Any and all Liabilities and obligations of Parent and Seller pursuant to the Seller Disclosure SchedulesFlorida Litigation; (s) Permitted Encumbrances; and (gt) any liabilities Any and all Liabilities of Parent or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebypursuant to Section 3.5 hereof.

Excluded Liabilities. Seller acknowledges that Buyer does not assume and will not be obligated to pay, perform, or otherwise discharge any of the sole following liabilities and or obligations being assumed by Buyer are the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “Excluded Liabilities”): (a) any liabilities or obligations of Seller to the extent related to any Excluded Assets; (b) any liabilities or obligations of Seller for any breach or default by Seller prior to the Effective Time, or any event prior to the Effective Time, which after the giving of notice or passage of time or both (it being understood that the giving of notice or passage of time may occur prior to or after the Effective Time) would constitute a default or breach by Seller, of or under the Business Agreements, the Permits, or the Environmental Permits, except to the extent that such liability or obligation is taken into account in respect of Indebtednessdetermining the Adjustment Amount; (c) all trade accounts payable and other accrued and unpaid expenses in respect of goods and services incurred by or for the Business in the ordinary course of business or otherwise, to the extent attributable to the period prior to the Effective Time (the “Accounts Payable”); (d) any liabilities or obligations of Seller in respect of indebtedness for borrowed money; (e) any liabilities or obligations in respect of Taxes of Seller or any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.87.7; (df) any obligations of Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable (except, with respect to vacation days and severance pay, as a result of the Closingotherwise provided in Section 7.9); (eg) except for the Assumed Environmental Liabilities, Losses from an Actionable Incident related to the Purchased Assets or Business; (h) except as otherwise expressly provided in Section 7.107.9, any liabilities liability or obligation of Seller under any deferred compensation arrangement or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller severance policy or any of its Affiliates, obligation to make any parachute or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Planretention payment; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (gi) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate Agreement or other document the Ancillary Agreements delivered in connection herewith, and any of the transactions contemplated hereby and thereby; (j) any Claims or Losses arising out of, in connection with or related to (i) the lawsuit filed on September 4, 2004 and pending, with consolidated lawsuits, in the U.S. District Court for the Western District of Missouri as described on Schedule 5.12(d), Item 2 (including indemnification obligations owed or claimed to be owed to members of Seller’s Board and/or employees); (ii) any liabilities of the Business owed or claimed to be owed to Seller as of the Effective Time (including intercompany or interdivisional accounts payable); (iii) any actions or inactions by Seller or any employee of Seller prior to Closing which constitute illegal or criminal activity in connection with Seller’s (A) receipt of any rebates, payments, commissions, promotional allowances or any other economic benefit, regardless of its nature or type, from any customer, supplier, trading company, shipping company, governmental employee or other Person with whom Seller has done business directly or indirectly, or (B) giving or agreeing to give any gift or similar benefit to any customer, supplier, trading company, shipping company, governmental employee or other person or entity who is or may be in a position to help or hinder the business of Seller (or assist Seller in connection with any actual or proposed transaction); or (iv) customer deposits, customer advances for construction and other similar items to the extent not reflected in the FERC Accounts; and (k) any criminal fines, penalties, or sanctions imposed as a result of actions or omissions by Seller or any employee of Seller prior to the Closing.

Excluded Liabilities. Seller acknowledges that Buyer shall not assume or be obligated to pay, perform or otherwise discharge the sole following liabilities and or obligations being assumed by Buyer are (the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “"Excluded Liabilities”"): (a) any Any liabilities or obligations of Seller to the extent related to Sellers in respect of any Excluded Assets or other assets of Sellers which are not Purchased Assets; ; (b) any liabilities or obligations of Seller in respect of Indebtedness; (c) any Any liabilities or obligations in respect of Taxes attributable to the ownership, operation or use of Seller or any Tax Affiliate of SellerPurchased Assets for taxable periods, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of stateportions thereof, local, or foreign law) as a transferee or successor, by contract or otherwiseending before the Closing Date, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 Sections 3.5 or Section 7.8; 6.8(a) hereof; (c) Any liabilities or obligations of Sellers accruing under any of the Sellers' Agreements prior to the Closing Date; (d) Any and all asserted or unasserted liabilities or obligations to third parties (including employees) for personal injury or tort, or similar causes of action arising solely out of the ownership or operation of the Purchased Assets prior to the Closing Date, other than any liabilities or obligations which have been assumed by Buyer under Section 2.3(d); (e) Any fines, penalties or costs imposed by a Governmental Authority resulting from (i) an investigation, proceeding, request for information or inspection before or by a Governmental Authority pending prior to the Closing Date but only regarding acts which occurred prior to the Closing Date, or (ii) illegal acts, willful misconduct or gross negligence of Sellers prior to the Closing Date, other than, any such fines, penalties or costs which have been assumed by Buyer under Section 2.3(d); (f) Any payment obligations of Sellers for goods delivered or services rendered prior to the Closing Date, including, but not limited to, rental payments pursuant to the Real Property Leases and Personal Property Leases; (g) Any liability, obligation or responsibility under or related to Environmental Laws or the common law, whether such liability or obligation or responsibility is known or unknown, contingent or accrued, arising as a result of or in connection with loss of life, injury to persons or property or damage to natural resources (whether or not such loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) to the extent caused (or allegedly caused) by the off-Site disposal, storage, transportation, discharge, Release, or recycling of Hazardous Substances, or the arrangement for such activities, of Hazardous Substances, prior to the Closing Date, in connection with the ownership or operation of the Purchased Assets, provided that for purposes of this Section "off-Site" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated; (h) Any liability, obligation or responsibility under or related to Environmental Laws or the common law, whether such liability or obligation or responsibility is known or unknown, contingent or accrued, arising as a result of or in connection with the investigation and/or Remediation (whether or not such investigation or Remediation commenced before the Closing Date or commences on or after the Closing Date) of Hazardous Substances that are disposed, stored, transported, discharged, Released, recycled, or the arrangement of such activities, prior to the Closing Date, in connection with the ownership or operation of the Purchased Assets, at any off-Site location, provided that for purposes of this Section "off-Site" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated; (i) Third party liability for toxic torts arising as a result of or in connection with loss of life or injury to persons (whether or not such loss or injury arose or was made manifest on or after the Closing Date) caused (or allegedly caused) by the presence or Release of Hazardous Substances at, on, in, under, adjacent to or migrating from the Purchased Assets prior to the Closing Date; (j) Subject to Section 6.10, any liabilities or obligations relating to any Benefit Plan maintained by the Sellers or any trade or business (whether or not incorporated) which is or ever has been under common control, or which is or ever has been treated as a single employer, with a Seller under Section 414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") or to which a Seller and any ERISA Affiliate contributed thereunder (the "ERISA Affiliate Plans"), including any multi-employer plan, maintained by, contributed to, or obligated to contribute to, at any time, by a Seller or any ERISA Affiliate, including but not limited to any liability (i) relating to benefits payable under any Benefit Plans (ii) relating to the Pension Benefit Guaranty Corporation under Title IV of ERISA; (iii) relating to a multi-employer plan; (iv) with respect to non-compliance with the notice and benefit continuation requirements of COBRA; (v) with respect to any noncompliance with ERISA or any other applicable laws; or (vi) with respect to any suit, proceeding or claim which is brought against Buyer, any Benefit Plan, ERISA Affiliate Plan, any fiduciary or former fiduciary of any such Benefit Plan or ERISA Affiliate Plan; (k) Subject to Section 6.10, any liabilities or obligations relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination by a Seller of any individual, attributable to any actions or inactions by the Sellers prior to the Closing Date other than such actions or inactions taken at the written direction of Buyer; (l) Subject to Section 6.10, any obligations for wages, overtime, employment taxes, severance pay, transition payments in respect of compensation or similar benefits accruing or arising prior to the Closing under any term or provision of any contract, plan, instrument or agreement relating to any of the Purchased Assets; and (m) Any liability of a Seller arising out of a breach by a Seller or any of its Affiliates for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, or retention or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closing; (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or their respective obligations under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; (f) except for the Recoverable Liabilities, any liabilities or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets this Agreement or the Business filed or arising from an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and therebyAncillary Agreements.

Excluded Liabilities. Notwithstanding any provision in this -------------------- Agreement or any other writing or commitment (written or oral) to the contrary, ACI is not assuming any debt, liability or obligation of the Seller acknowledges that (or any predecessors of the sole Seller or any prior owners of all or part of its businesses and assets) of whatever nature, whether presently in existence or arising hereafter, other than the assumption by ACI of the Assumed Liabilities. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of the Seller (all such liabilities and obligations not being assumed by Buyer are being herein referred to as the Assumed Obligations and Seller shall retain all other liabilities and obligations, including (collectively, the “"Excluded Liabilities”):"). Notwithstanding anything to the contrary in Section 2.03, none of the following ------------ shall be Assumed Liabilities for the purposes of this Agreement: (a) any intercompany payables or other liabilities or obligations of the Seller to the extent related to any Excluded Assetsof its Affiliates; (b) any liabilities of Seller's Employee Liabilities, any liability or obligations obligation under or with respect to any Employee Plan or Benefit Arrangement, or any other liability or obligation related to employees of Seller in respect of Indebtednessthe Seller, whether written or oral; (c) any liabilities liability or obligations in respect of Taxes of Seller or obligation for Designated Chapter 11 Costs and any Tax Affiliate of Seller, or any liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, except for Taxes for which Buyer is expressly liable pursuant to Section 3.4 or Section 7.8contracts related thereto; (d) any obligations of Seller liability or any of its Affiliates obligation for wages, vacation pay, other paid time off, employment Taxes, bonuses, other incentive compensation, commissions, expense reimbursement, indebtedness for borrowed money or retention evidenced by bonds or severance pay to the extent attributable to the period prior to the Effective Time or which may become payable as a result of the Closingnotes (including accrued interest and fees with respect thereto); (e) except as otherwise expressly provided in Section 7.10, any liabilities under or relating to any Benefit Plan at any time maintained, contributed to or required to be contributed to by Seller or any of its Affiliates, or under which Seller or any Affiliate has or may incur liability, or any contributions, benefits or liabilities therefor, or any liability with in respect of Taxes for which the Seller is liable pursuant to Seller’s or any of Seller’s Affiliate’s withdrawal or partial withdrawal from or termination of any Benefit Plan; Section 14.03(a)(i); ------------------- (f) except for the Recoverable Liabilities, any liabilities liability or obligations arising from any Claim (including any workers’ compensation claim) involving the Purchased Assets or the Business filed or arising from obligation relating to an Actionable Incident occurring prior to the Effective Time, including any such Claims or Actionable Incidents disclosed in the Seller Disclosure Schedules; and (g) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby.Excluded Asset;