Retained Liabilities. The Sellers shall retain liability to third parties for the following (the “Retained Liabilities”):
(a) liabilities arising from disposal off-site of the Facilities before the Closing Date of Hazardous Materials originating from the Facilities or the JWWTP (including without limitation with respect to the Star Lake Canal site, EPA ID TX0001414341) (the “Seller Off Site Disposal Liability”);
(b) fines and penalties imposed by Governmental Entities for violations before the Closing Date of Environmental Laws or Environmental Permits (the “Seller Environmental Fines and Penalties Liability”);
(c) liabilities, known or unknown, to the extent arising from the exposure before the Closing Date of any employee, former employee, Independent Contractor or former independent contractor of either Seller or other Person to Hazardous Materials from, at or on the Site or the other Assets (the “Seller Exposure Liability”);
(d) liabilities, known or unknown, to the extent arising from the MTBE that was manufactured, sold, processed, used or stored by the Sellers in conducting the Business before the Closing Date, excluding the Product Inventory comprised of MTBE conveyed to the Purchaser at the Closing (the “Seller MTBE Liability”);
(e) any obligation under (i) each Assumed Contract, related to the rights under each Assumed Contract assigned to the Purchaser under the Assignment and Assumption Agreement, (ii) each License of either Seller included in the Assets, and (iii) each JWWTP Agreement, related to the rights under each JWWTP Agreement assigned to the Purchaser under the Assignment (JWWTP Agreements); in each case clause (i), (ii) or (iii), required to be performed before the Closing Date; and any indebtedness of either Seller in respect of the Assets, to the extent not taken into account in the determination of Final Net Working Capital;
(f) physical or bodily injuries to, or damage to the property of, third parties that occurred before the Closing Date to the extent caused by the physical condition of the Assets;
(g) liabilities (including accounts payable) owed by either Seller to the other Seller or any Affiliate of the Sellers on or before the Closing Date in respect of the Business, the Facilities or any other Assets;
(h) liabilities for (i) Taxes of either Seller not related to or associated with the Business, the Facilities or the other Assets, (ii) Taxes related to or associated with the Business, the Facilities or the other Assets or the Assumed Liabilities...
Retained Liabilities. The Retained Liabilities shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller. “Retained Liabilities” shall mean every Liability of Seller other than the Assumed Liabilities, including:
Retained Liabilities. (a) Seller shall retain and pay, discharge and perform any and all obligations and liabilities not expressly assumed by Purchaser in Section 1.06 above, including the following obligations and liabilities (all such obligations and liabilities, the "Retained Liabilities"):
(i) liabilities for unpaid Taxes (as defined in Section 2.10);
(ii) all obligations or liabilities of Seller that relate to any of the Excluded Assets;
(iii) all obligations or liabilities for any borrowed money incurred by Seller whether pre-petition or post-petition;
(iv) all obligations and liabilities resulting from, caused by or arising out of, directly or indirectly, the conduct of Seller's business or ownership or lease of any of its properties or assets or any properties or assets previously used by Seller at any time prior to the Closing Date, including such of the foregoing as constitute, may constitute or are alleged to constitute a tort, breach of contract, or violation or requirement of any law or governmental regulation;
(v) any and all liabilities of Seller under any employee benefit plans, whether formal or informal, whether or not set forth in writing, and whether covering one person or more than one person, sponsored or maintained by Seller. For the purposes hereof, the term "employee benefit plan" includes all plans, funds, pension funds, programs, policies, arrangements, practices, customs and understandings providing benefits of economic value to any employee, former employee, or present or former beneficiary, dependent or assignee of any such employee or former employee other than regular salary, wages or commissions paid substantially concurrently with the performance of the services for which paid. The term "employee benefit plan" includes all employee welfare benefit plans within the meaning of Article 3
(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all employee pension benefit plans within the meaning of Article 3
Retained Liabilities. Notwithstanding anything to the contrary set forth in this Agreement, Purchaser shall not assume, or be deemed to have assumed, and the Sellers shall be solely and exclusively liable with respect to, all Liabilities, other than the Assumed Liabilities, of Sellers and their Affiliates (the "Retained Liabilities"), including the following:
(a) all Liabilities to the extent relating to or incurred in connection with the Retained Assets;
(b) all indebtedness for borrowed money, capital leases or guarantees or other support arrangements in respect of any of the foregoing of Sellers and their Affiliates, other than the indebtedness for borrowed money of the Trust evidenced by the Trust Certificates;
(c) all Liabilities and obligations for Damages or Taxes for which Sears is responsible pursuant to Article VIII;
(d) except as otherwise provided in Section 6.16, all Liabilities of Sellers and their Affiliates relating to the Business Employees or to the compensation and benefits of the Business Employees;
(e) all Liabilities of Sears and its Affiliates to the extent arising in connection with their operations that are unrelated to the Credit Card Business or the Financial Products Business;
(f) all legal, accounting, brokerage and finder's fees, if any, or other fees and expenses incurred by Sellers in connection with this Agreement or the consummation of the transactions contemplated hereby;
(g) all Liabilities related to, associated with or arising out of any action, claim, suit or judicial, arbitral or administrative proceeding with respect to the operation of the Credit Card Business (including relating to the Trust, the Securitization Interests or the Securitization Documents) or the Financial Products Business prior to the Closing Date, whether such action, claim, suit or proceeding is brought prior to, on or after the Closing Date;
(h) all Liabilities related to, associated with, or arising out of any breach or default, failure to perform and overcharges or under payments, in each case, arising under the Assumed Contracts prior to the Closing;
(i) all Liabilities that result from an act, or failure to act, by the Sellers or any of their Affiliates prior to the Closing Date that relates to any claims by any Borrower, in each case net of any merchant charge-backs or other set-offs permissible under the operating rules and regulations of the applicable Card Association in effect at such time;
(j) all Pre-Closing Environmental Liabilities and Costs; and
(k) the...
Retained Liabilities. Except as expressly provided in Section 2.3, the Buyer will not assume any liabilities, commitments or obligations (known or unknown, contingent or absolute and whether or not determinable as of the Closing) of the Sellers except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations (known or unknown, contingent or absolute and whether or not determinable as of the Closing) not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Sellers (the “Retained Liabilities”), who shall remain liable therefor unconditionally and without right of set-off. The Sellers hereby irrevocably and unconditionally waive and release the Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or common law. Without limiting the foregoing, except as expressly provided in Section 2.3, all of the following shall be considered Retained Liabilities and not Assumed Liabilities for the purposes of this Agreement:
(a) any and all liabilities and obligations of the Sellers arising out of or relating to the conduct of the Business or the ownership of the Purchased Assets on or prior to the Closing Date, including any and all claims, demands, actions, suits or legal proceedings that are pending or have been or are asserted or threatened prior to or after the Closing Date against the Sellers, the Business or the Purchased Assets, or that may be asserted, or that have arisen or arise in any way from or in connection with (i) the conduct or operation of the Business or the ownership of the Purchased Assets on or prior to the Closing Date, or (ii) any other business or activities of the Sellers conducted prior to or after the Closing Date;
(b) any liabilities or obligations in respect of Excluded Assets;
(c) any obligations of the Sellers for expenses, Taxes or fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation of the transactions contemplated hereby, including, without limitation, all attorneys’ and accountants’ fees and all brokers’ or finders’ fees or commissions payable by the Sellers;
(d) any obligation of the Sellers under or arising out of this Agreement;
(e) liabilities to the extent that the Sellers are insured or otherwise indemnified or which would have been covered by insurance (...
Retained Liabilities. All Liabilities of the Company other than Assumed Liabilities (the "RETAINED LIABILITIES") shall be retained and paid, performed and discharged when due by the Company and Parent (PROVIDED, that the Company shall have the ability to contest, in good faith, any such claim of liability asserted in respect thereof by any Person other than Purchaser and its Affiliates, so long as such contest does not result in a Lien upon any of the Assets):
(i) except to the extent any such liability is reflected on the Closing Date Balance Sheet as a current liability of the Business, any loss or liability of the Company of any nature or description, whether liquidated or contingent, to the extent (a) resulting from events or conditions which occurred or existed prior to the Transfer Time, or (b) arising out of or relating to the Excluded Assets (including those items identified as Retained Liabilities in SECTION 1.08);
(ii) any loss or liability relating to current or former employees of the Business (and their eligible dependents and beneficiaries), including with respect to employment or Benefit Plans, which accrued on or prior to the Transfer Time, except to the extent that such liability is reflected on the Closing Balance Sheet as a current liability of the Business;
(iii) all Liabilities with respect to gaming chips and tokens issued by the Company (but not progressive meters), except as provided otherwise herein;
(iv) all Liabilities related to Benefit Plans, except to the extent that such liability is reflected on the Closing Balance Sheet as a current liability of the Business;
(v) all Indebtedness (other than current accounts payable or accrued expenses of the Company incurred or accrued in the ordinary course of business, but only to the extent that the accrual for such payables and expenses has been properly reflected on the Closing Balance Sheet, and other than to the extent arising following the Transfer Time under Contracts that constitute Assets);
(vi) any Liability, whether currently in existence or arising hereafter, owed by the Company to any of its Affiliates;
(vii) all Liabilities related to any fines or penalties imposed against the Company (or with respect to the Business or any Asset) by any Governmental or Regulatory Authority (including, without limitation, the Commission) prior to the Transfer Time; and
(viii) all other Liabilities of the Company other than the Assumed Liabilities.
Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any of the following liabilities of Seller or any of its subsidiaries (the "Retained Liabilities"):
Retained Liabilities. To the extent that any payments made by PNX in respect of the Retained Liabilities (a “Retained Liability Payment”) gives rise to a Retained Liability Tax Benefit to Spinco in any taxable period, Spinco will promptly remit to PNX the amount of any such Retained Liability Tax Benefit actually realized. For purposes of this Agreement, “Retained Liability Tax Benefit” means a reduction in the amount of Taxes that are required to be paid or increase in refund due, whether resulting from a deduction, credit, increased basis, or otherwise. For purposes of this Agreement, Spinco will be deemed to have actually realized a Retained Liability Tax Benefit at the time the amount of Taxes Spinco is required to pay is reduced or the amount of any refund due is increased. The amount of any Retained Liability Tax Benefit in this Section 2.5 shall be calculated by comparing (i) Spinco’s actual Tax liability taking into account any Retained Liability Payment with (ii) what Spinco’s Tax liability would have been without taking into account any Retained Liability Payment. If, pursuant to this Agreement, Spinco makes a remittance to PNX of any Retained Liability Tax Benefit and all or part of such Retained Liability Tax Benefit is subsequently disallowed, PNX will promptly pay to Spinco that portion of such remittance equal to the portion of the Retained Liability Tax Benefit that is disallowed.
Retained Liabilities. Except for the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any liabilities, commitments, contracts, agreements, obligations or other claims against Seller, whether known or unknown, asserted or unasserted, accrued or unaccrued, absolute or contingent, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise. Without limiting the generality of the foregoing, the parties acknowledge that Purchaser shall not assume or in any way be responsible for any of the following liabilities or obligations of Seller:
(a) liabilities in respect of indebtedness of Seller;
(b) product liability and warranty claims relating to any product or service of Seller produced, manufactured, sold, performed or delivered on or prior to the Closing Date;
(c) except for any and all Transfer Taxes, Taxes, duties, levies, escheats, assessments and other such charges, including without limitation, any penalties, interests and fines with respect thereto, payable by Seller to any federal, provincial, municipal or other government or Governmental Authority, domestic or foreign, including without limitation, Taxes arising out of the transactions contemplated by this Agreement;
(d) except for the amounts owed in schedule 1.04(d), liabilities for salary, bonus, vacation pay or other compensation or benefits relating to Seller's employees for periods prior to the Closing Date;
(e) severance payments, damages for wrongful dismissal and all related costs in respect of the termination by Seller of the employment of Affected Employees;
(f) liabilities or obligations relating to an Excluded Asset, including without limitation, any liability or obligation arising out of a claim by any party to any agreement which is an Excluded Asset arising out of the failure to transfer such Excluded Asset;
(g) any liability or claim that may be due and owing to Seller or its Affiliates; and
(h) any liability or claim for liability (whether in contract, in tort or otherwise, and whether or not successful) related to any lawsuit or threatened lawsuit or claim (including without limitation, any claim for breach or non-performance of any Contract) based upon actions, omissions or events occurring on or prior to the Closing Date.
Retained Liabilities. Except for the Assumed Liabilities, Buyer shall not assume nor become responsible for any liability or obligation of Seller of any nature whatsoever, whether known or unknown, accrued, absolute, contingent or otherwise (the "Retained Liabilities").
