TO
BECOME DUE (COLLECTIVELY, THE "RETAINED LIABILITIES"). SELLER SHALL RETAIN AND
SHALL BE RESPONSIBLE FOR PAYING AND SATISFYING THE RETAINED LIABILITIES
INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
(A)
ALL LIABILITIES ARISING OUT OF THE
CONTRACTS TO BE TRANSFERRED TO BUYER AS SET FORTH IN SECTION 2.1(G) WHICH ARE
NOT ASSIGNED TO THE BUYER BECAUSE NECESSARY CONSENTS TO SUCH ASSIGNMENT HAVE NOT
BEEN OBTAINED; PROVIDED, HOWEVER, THAT BUYER SHALL BE RESPONSIBLE FOR PAYING AND
SATISFYING ALL SUCH LIABILITIES TO THE EXTENT THAT BUYER HAS RECEIVED THE
BENEFIT OF SUCH CONTRACTS NOTWITHSTANDING SUCH LACK OF ASSIGNMENT;
17
(B)
ANY LIABILITY OF SELLER ARISING OUT OF A
BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT;
(C)
SUBJECT TO SECTION 2.3(B), ANY LIABILITIES
IN CONNECTION WITH OR RELATING TO ACTIONS, SUITS, JUDGMENTS, LITIGATION,
ASSESSMENTS, PROCEEDINGS, INVESTIGATIONS OR CLAIMS RELATING TO PERIODS AND
ARISING OUT OF EVENTS OCCURRING PRIOR TO THE CLOSING DATE;
(D)
ALL LIABILITIES WHICH ARE (I) RELATED TO THE
OPERATION OF THE DIGITRAN BUSINESS BY SELLER PRIOR TO THE CLOSING OR
(II) ACCRUED IN ACCORDANCE WITH GAAP PRIOR TO THE CLOSING WITH RESPECT TO
(X) THE CONTRACTS OR (Y) AN OCCURRENCE RELATED TO THE DIGITRAN BUSINESS WHICH
OCCURRED PRIOR TO THE CLOSING;
(E)
ALL LIABILITIES OF SELLER ARISING OUT OF OR
IN CONNECTION WITH EMPLOYMENT RELATED CLAIMS FOR BENEFITS OF ANY KIND BY THE
EMPLOYEES OF THE DIGITRAN BUSINESS ARISING OUT OF ANY OCCURRENCE PRIOR TO THE
CLOSING INCLUDING, BUT NOT LIMITED TO, (I) ANY EARNED ACCOUNT, VACATION, HOLIDAY
PAY OR ANY OTHER FRINGE BENEFITS PROVIDED BY SELLER TO SUCH EMPLOYEES, (II) ANY
HEALTH, DISABILITY, BONUSES, COMPENSATION OR LIFE INSURANCE COVERAGE OR MEDICAL
BENEFITS PROVIDED BY SELLER TO SUCH EMPLOYEES, (III) ANY SEVERANCE PAY OR OTHER
TERMINATION BENEFITS DUE FROM SELLER TO SUCH EMPLOYEES AND (IV) OBLIGATIONS OF
SELLER SET FORTH IN SECTION 7.5;
(F)
ANY LIABILITIES CAUSED BY ANY PRODUCT
SHIPPED BY SELLER OR XCEL JAPAN IN THE OPERATION OF
THE DIGITRAN BUSINESS PRIOR
TO THE CLOSING, INCLUDING, BUT NOT LIMITED TO, LIABILITIES FOR DEATH, BODILY
INJURY OR PROPERTY DAMAGE, AND ANY LIABILITY FOR RECALLS OF ANY PRODUCTS
PRODUCED, SOLD OR DISTRIBUTED PRIOR TO THE CLOSING;
(G)
ALL LIABILITIES OF ANY UNFUNDED VESTED
BENEFIT LIABILITY TO ANY MULTI-EMPLOYER PENSION PLAN TO WHICH SELLER MADE
CONTRIBUTIONS;
(H)
ANY LIABILITY RELATED TO ANY BENEFIT PLAN OF
SELLER;
(I)
ANY LIABILITY ARISING OUT OF THE FAILURE
TO COMPLY WITH ANY APPLICABLE BULK TRANSFER LAW;
(J)
ANY ENVIRONMENTAL HEALTH AND SAFETY
LIABILITIES RELATED TO THE OPERATION OF THE DIGITRAN BUSINESS BY SELLER PRIOR TO
THE CLOSING;
(K)
THE POTENTIAL AQMD PERMIT LIABILITY;
(L)
THE POTENTIAL SIERRA CIRCUITS LIABILITY;
(M)
THE POTENTIAL CLEAN ROOM LIABILITY;
(N)
THE POTENTIAL BKK ENVIRONMENTAL LIABILITY;
AND
(O)
ALL OTHER LIABILITIES OF SELLER RELATING TO
THE DIGITRAN BUSINESS NOT INCLUDED IN THE ASSUMED LIABILITIES.
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2.5
ASSIGNABILITY AND CONSENTS.
(A)
REQUIRED CONSENTS.
SCHEDULE 2.5(A) SETS
FORTH A LIST OF ALL PURCHASED ASSETS, INCLUDING CONTRACTS AND GOVERNMENTAL
AUTHORIZATIONS, WHICH ARE NON-ASSIGNABLE OR NON-TRANSFERABLE OR CANNOT BE
SUBLEASED TO BUYER WITHOUT