Common use of Retained Liabilities Clause in Contracts

Retained Liabilities. Without limiting any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement.

Retained Liabilities. Without limiting Sellers shall retain responsibility for performing when due, and Buyer shall not assume or have any responsibility for, all liabilities of Sellers related to the Business and the Purchased Assets other -------------------- provision than the Assumed Liabilities, including (i) the ownership and operation of this Agreement, the Xxxxxx Group acknowledges Business and the obligations and liabilities Purchased Assets prior to the Closing; (ii) the Excluded Assets; (iii) the termination of any employees of Sellers who are not Transferred Employees; (iv) Transferred Employees who do not report for work with Buyer upon the Closing; (v) certain indebtedness of the Sellers set forth on Schedule 5.091.4; (vi) any refund, recoupment, and any penalty obligations for services rendered and billed by the Business or its employees prior to Closing, regardless of when such obligations are discovered or due; and (vii) any liability relating to or arising out of any employment action or practice in connection with Seller’s employment or termination of employment of any persons currently or formerly employed or seeking to be employed by the extent applicableSellers, including liabilities based upon breach of employment contract, employment discrimination, wrongful termination, wage and hour compliance (including, without limitation, employee classification, overtime and minimum wage obligations), independent contractor classification, health and safety requirements, immigration and/or worker authorization requirements, disability accommodation and leave laws, workers’ compensation, constructive termination, failure to give reasonable notice or pay in lieu of notice, severance or termination pay or the Consolidated Omnibus Budget Reconciliation Act, as amended, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following Employee Retirement Income Security Act of 1974, as amended, the Distribution DateWorker Adjustment Retraining Notification Act of 1988, as amended, the Fair Labor Standards Act, as amended, or the National Labor Relations Act, as amended, or any equivalent state, municipal, county, local, foreign or other Applicable Law. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in any amounts that come due pursuant to this Section 3.01 of this Agreement shall not apply 1.4(a)(vi) or related to the extent that the Xxxxxx Indemnified Parties are the causeliabilities listed on Schedule 2.12(b), either directly or indirectlyif any, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities shall be offset as set forth in Schedule 5.09. The foregoing notwithstanding, with respect Section 7.6(e) subject to any guarantees issued by Parent that are listed on Schedule 5.09 Sellers’ and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt Owner’s prior written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreementconsent.

Retained Liabilities. Without limiting Except for the Assumed Liabilities and Purchaser’s pro rata portion of any other -------------------- provision of this AgreementShared Liabilities (as hereinafter defined), the Xxxxxx Group acknowledges the obligations it is expressly understood and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement agreed that Purchaser shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly assume or indirectly, of have any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, responsibility with respect to any guarantees issued by Parent that are listed Liability of the Seller, regardless of the nature thereof, including any Liabilities arising from or in connection with, or attributable or related to, the Seller’s operation of the Business or the Seller’s ownership, lease or use of the Acquired Assets, including (i) any such Liability arising from events, facts or circumstances occurring on Schedule 5.09 or prior to the Closing Date, (ii) any such Liability arising out of the employment, terms or conditions of employment, or termination of employment of any Person, or the failure to employ any Person, including, severance, the Worker Adjustment and Retraining Act, income tax withholding, payroll and/or unemployment tax, workers’ compensation, salary or consulting fees, pension, profit-sharing, accrued, earned or unused vacation or sick leave, health insurance or any other guarantees by Parent employee or employee benefit Liabilities, withdrawal Liability, Liability to the PBGC, Liability under Section 412 of the Code or Section 102 (a)(2) of ERISA or other similar Liability or expense, (iii) any such Liability for any period of time for Taxes, penalties or interest (including without limitation any property or sales Tax Liability, penalty or interest), (iv) any such Liability for expenses, debts or obligations incurred within or outside the Ordinary Course of Business and (v) any such Liability pursuant to Environmental, Health, and Safety Laws. Purchaser shall not become a party to any Employee Benefit Plan as a result of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under transactions contemplated by this Section 5.09 with respect to any Agreement. All such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution Liabilities of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing Seller described above in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 2.5 shall be in addition referred to any obligation of New Fluor to indemnify herein collectively as the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement“Retained Liabilities”.

Retained Liabilities. Without limiting any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall not apply to have no liability for, any Liabilities of the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, Sellers of any matterkind, activity character, nature or omission resulting in Losses due to breach of description whatsoever (the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding"Retained Liabilities"), with respect to the following: (i) Liabilities for Taxes as set forth in Article XII hereof; (ii) any guarantees issued Liabilities in any way relating to the Business or the APX Continuing Business and owed to any of the Sellers or any of their Affiliates other than the Liabilities set forth in Section 15.03 of the Disclosure Schedule and those reflected in the Effective Date Balance Sheet; (iii) Liabilities relating to the Excluded Assets and all Liabilities relating to or arising in connection with or as a result of actions taken or omitted to be taken by Parent that are the Sellers in connection with the Non-Core Businesses listed on in Section 6.05 of the Disclosure Schedule 5.09 or the Non-Core Assets, including, without limitation, all Liabilities arising out of Body Systems and any other guarantees by Parent Assembly Cutlass Convertible Program, including, without limitation, Liabilities arising out of any warranty obligations with respect thereto; (iv) any Funded Indebtedness; (v) subject to the provisions of Section 18.18, Liabilities under any self-insurance maintained by the Sellers during the Interim Period except to the extent of any applicable deductible; (vi) except to the extent assumed under Article XIII, Liabilities arising in any way from the Fluor employment, compensation, benefits, or coverage under any Employee Benefit Plan or Employee Benefit Arrangement, of any employee, agent, contractor or consultant engaged in the Business that survive at any time prior to the DistributionClosing Date who is not an Interim Employee or a Transferred Employee; (vii) except to the extent assumed under Article XIII, the obligations of the Xxxxxx Group Liabilities arising under this Section 5.09 any Employee Benefit Plan or Employee Benefit Arrangement with respect to any Interim Employee or any Transferred Employee; (viii) Liabilities resulting from or relating to claims for indemnification by any past or present officers or directors of either Seller; (ix) Liabilities for Permitted Payments, to the extent such guarantee shall be deemed fully satisfied, and Permitted Payments are included in the Xxxxxx Indemnified Parties shall not suffer any diminution determination of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: Interim Period Cash Flow; (ax) except to the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations extent assumed under Article VI hereof that arise in respect of any claims made under such guarantee. With respect XIII, Liabilities resulting from or relating to the guarantees listed on Schedule 5.09 facts and any other guarantees by Fluor Corporation that relate circumstances giving rise to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member case of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement.Corbxx x.

Retained Liabilities. Without limiting Notwithstanding any other -------------------- provision of this Agreement, Buyer shall not assume, or otherwise be responsible for, any of the Xxxxxx Group acknowledges following Liabilities of the Sellers that are not Assumed Liabilities (the “Retained Liabilities”): (i) any and all Liabilities of any Seller or any of its Subsidiaries, whether arising before, on or after the Closing Date, to the extent resulting from or arising out of the past, present or future ownership or use of any of the Excluded Assets, (ii) (A) all Liabilities assumed by, retained by or agreed to be performed by Parent or its Subsidiaries pursuant to this Agreement or any of the Ancillary Agreements, (B) all Liabilities for Property Taxes that are specifically allocated to or made the obligation of the Sellers pursuant to Section 8.3, (C) any Excluded Pension Liabilities, and (D) all Indebtedness of any Seller or any of its Subsidiaries (other than any Purchased Entity or Subsidiary of a Purchased Entity), (iii) Taxes of the Sellers or any of their Subsidiaries (excluding any Taxes of the Purchased Entities or Subsidiaries of the Purchased Entities or any Taxes specifically allocated or made the obligation of Buyer pursuant to Section 8.3), (iv) all Liabilities, obligations, commitments, claims, and losses related to employment, labor compensation or employee benefits of each current or former employee of Parent or its Subsidiaries (other than the Transferring Employees) whether arising before, on or after the Closing Date, except as expressly assumed by Buyer as set forth in Section 9.1, (v) all Liabilities, obligations or claims relating to the Transaction Bonus Agreements, except as expressly assumed by Buyer as set forth in Section 9.1, (vi) all Liabilities, obligations, commitments or claims relating to deferred compensation, workers compensation, or long-term incentive compensation of each current or former employee of Parent or any of its Subsidiaries (other than the Transferring Employees) arising before, on or after the Closing Date, (vii) all Liabilities, obligations, commitments or claims relating to stock-based compensation (including stock options and liabilities restricted stock units) of Parent or any of its Subsidiaries which is held by current or former employees of Parent or any of its Subsidiaries (including the Business Employees), and (viii) the Liabilities of any Seller or any of its Subsidiaries set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement1.4.

Retained Liabilities. Without limiting any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement The Buyer shall not apply at the Closing -------------------- assume or agree to the extent that the Xxxxxx Indemnified Parties are the causeperform, either directly pay or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfieddischarge, and the Xxxxxx Indemnified Parties Company shall not suffer remain unconditionally liable for, all obligations, liabilities and commitments, fixed or contingent, known or unknown, of the Company (other than the Assumed Liabilities), including, without limitation, any diminution liabilities or obligations related to (i) any of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: the Company's indebtedness, including, without limitation, the liabilities comprising the "Current Maturities of Debt" and "Debt, Net of Current Maturities" line items on the Balance Sheet of the Company dated March 31, 1999 and attached hereto as Schedule 1.4(b) (athe "Initial Asset/Liability --------------- Schedule"), (ii) any litigation involving the Xxxxxx Group provides New Fluor with prompt written notice Company, (iii) brokers or other third parties acting on behalf of any claims made under such guarantee and tenders the defense of such claims to New Fluor Company in accordance connection with the provisions sale of Section 4.01 and 4.02 hereof and the Acquired Assets, (biv) any Employee Plan maintained by the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect Company on or prior to the guarantees listed on Schedule 5.09 Closing Date and any other guarantees by Fluor Corporation that relate related to the Fluor Business, ; (v) any Taxes which are or were due and payable in connection with the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts Acquired Assets or the Business on or prior to prevent the Closing Date; (vi) any claim from being arising from, relating to or made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth Environmental Law based on any event, action or inaction by the Company in this Section 5.09 shall connection with the Business or the Acquired Assets on or prior to the Closing Date; (vii) any Contract that is not an Assumed Contract; (viii) any payments to be in addition made to any obligation employees or consultants of New Fluor to indemnify the Xxxxxx Group with respect to Losses Company related to such guarantees pursuant the Business that are triggered by the transactions contemplated herein, including without limitation, golden parachute or golden handcuff payments; (ix) any liability related to Section 3.01(ethe Company's real estate leases, including, without limitation, the current space utilized in connection with the Business; (x) of this Agreementthe Employee Bonuses (as defined below); and (xi) any liability related to the Electronic Commerce Business.

Retained Liabilities. Without limiting All liabilities and obligations of Parent or Seller, as the case may be, including, without limitation any other -------------------- provision of legal and accounting fees incurred by Parent or Seller in connection with the transactions contemplated by this Agreement, whether arising on, prior to or after the Xxxxxx Group acknowledges Closing Date, other than the obligations and liabilities set forth on Schedule 5.09Assumed Liabilities, and are referred to as the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date“Retained Liabilities”. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach All of the obligations and Retained Liabilities, including, for the avoidance of doubt, any liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect arising out of or relating to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders Parent’s financial reporting units other than the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and Business, (b) any management or other overhead expense of Parent or Seller that has historically been allocated to the Xxxxxx Group complies Business, (c) the failure of Parent and Seller to (i) properly classify each Employee (as hereinafter defined) as either an employee, an independent contractor or other non-employee status or an exempt or non-exempt employee for all purposes, including but not limited to (A) tax and tax reporting purposes and (B) requirements imposed by applicable Law (as hereinafter defined) governing the payment of wages and/or (ii) pay all required wages and other compensation to each and every Employee, and/or pay all other amounts owed to any Governmental Authority or other Person relating to the Employees (including, without limitation, any and all employment taxes, workmen’s compensation, and disability payments (the “Employee Liabilities”) and (d) any liabilities or obligations associated with its obligations under Article VI hereof that arise the Employee Benefits Plans and any other employee plans, programs or arrangements maintained or contributed to by Parent or Seller, or as to which Parent or Seller has or could reasonably be expected to have any outstanding liability to or in respect of any claims made under such guarantee. With respect or obligation under, including but not limited to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member liabilities arising out of the Xxxxxx Group for taking any action establishment of, maintenance of, operation of, withdrawal from or refraining from taking any action in the defense, settlement or other handling termination of any claim against such Employee Benefit Plans by Parent, Seller or any member person with which Parent or Seller is required to be treated as a single employer under Section 4001(b) of the New Fluor Group covered Employee Retirement Income Security Act of 1974, as amended, will remain the sole responsibility of and will be retained, paid, performed and discharged solely by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementParent and Seller.

Retained Liabilities. Without limiting any In connection with the conveyance of the Shares to Buyer, Southern shall retain all, and Seller shall not be obligated to pay any, liabilities and obligations existing at the Financial Information Date or accruing thereafter (other -------------------- provision than the Assumed Liabilities), including without limitation of this Agreement, the Xxxxxx Group acknowledges generality of the foregoing future payment and performance of obligations and liabilities set forth existing as of such time or accruing on Schedule 5.09, and or after the Financial Information Date with respect to the extent applicablefollowing (collectively, the Xxxxxx Group agrees to honor “Retained Liabilities”): (i) current liabilities consisting of accounts payable and properly discharge all such obligations accrued payables of Southern, accrued payroll and vacation liabilities, accrued payroll taxes and withholdings, other miscellaneous current liabilities, short term lease liabilities and accounts payable of Southern as of the Financial Information Date; (ii); performance following the Distribution Financial Information Date under the Contracts including, without limitation, long term lease liabilities, deferred CARES receipts; (iii) those obligations of Southern in respect of real property taxes and utilities as of and following the Financial Information Date. Notwithstanding anything to ; (iv) performance following the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach Financial Information Date of the obligations under the Provider Agreements and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, Contracts with respect to obligations existing and/or incurred or occurring after the Financial Information Date; (v) obligations existing as of or arising after the Financial Information Date under all permits, approvals, licenses, qualifications, registrations, or certifications; (vi) any guarantees issued by Parent that are listed liabilities or obligations to former employees of Seller under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) accruing on Schedule 5.09 the Financial Information Date or thereafter, (vii) all Physician Employment Agreements of Southern; and any other guarantees by Parent of any (vii) all obligations arising from operation of Trace Regional following the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementFinancial Information Date.

Retained Liabilities. Without limiting any In connection with the conveyance of the Purchased Assets, Buyer shall not assume, and Seller shall retain, all indebtedness and obligations of Seller existing at the Closing Date, (other -------------------- provision of this Agreementthan, in each case, the Xxxxxx Group acknowledges Assumed Liabilities) (collectively, the “Retained Liabilities”) consisting of: (i) indebtedness for borrowed money, capital leases or obligations for the deferred payment of the purchase price of property or services of Seller existing on or incurred prior to the Closing Date (except under any Ancillary Agreement or Assumed Affiliate Contract) (ii) liabilities (including contingent liabilities) disclosed or reserved against in the Financial Statements or due for periods after the date of such Financial Statements and incurred or accruing prior to Closing, (iii) claims or potential claims by Medicare, Medicaid, CHAMPUS/TRICARE and other similar programs of federal or state Governmental Authorities (“Government Programs”) and/or commercial third party payors other than pursuant to Government Programs (“Private Payors”) in respect of cost reports filed by Seller, or to be filed, for periods prior to Closing relating to services rendered up and including to the Closing Date, (iv) liabilities set forth on Schedule 5.09and obligations of Seller and its Affiliates arising under the terms of all Government Programs or Payor Agreements relating to services rendered by Seller prior to Closing (“Recoupments”), and (v) any liabilities or obligations to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, arising with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Excluded Assets, (vi) subject to Section 5.09 11.6, any civil or criminal obligation or liability resulting from any violation by Seller prior to the Closing of Applicable Law or resulting from any investigations of Governmental Authorities, or any claims or actions by Government Authorities against, Seller with respect to acts or omissions of Seller prior to the Closing, (vii) federal or state income tax liabilities of Seller, (viii) except for the Assumed Liabilities, other liabilities existing at, or indebtedness or obligations of Seller undertaken or assumed, prior to Closing, (ix) except with respect to the Hired Employees PTO Benefits, all obligations or liabilities of any such guarantee shall be deemed fully satisfiednature for any compensation or benefits of any kind or nature to the employees of Seller related to services rendered prior to the Closing, (x) all obligations or liabilities arising under or related to Seller’s Employee Benefit Plans, including, without limitation, workers’ compensation claims which relate to events occurring prior to the Closing, and the Xxxxxx Indemnified Parties shall not suffer any diminution (xi) except as otherwise provided in this Agreement, performance and payment of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its all obligations under Article VI hereof that arise or liabilities incurred in respect of any claims made under such guarantee. With respect periods of ownership or operations by Seller prior to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementClosing.

Retained Liabilities. Without limiting any other -------------------- provision Other than the Assumed Liabilities, Purchaser shall not assume and shall not be liable for, and Seller shall retain and, as between Purchaser and Seller, remain solely liable for and obligated to discharge, all liabilities and obligations of Seller, whether known or unknown, accrued or not accrued, fixed or contingent, and arising out of or resulting from the operation of the Business (each a “Retained Liability” and collectively, the “Retained Liabilities”), including but not limited to: (a) costs and expenses of Seller incurred or to be incurred by it in the negotiation and preparation of this Agreement and carrying out the transactions contemplated by this Agreement, including legal fees, (b) obligations, commitments or other liabilities of Seller (each a “Liability”) under any Contract of Seller other than the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Assigned Contracts, and (c) Liabilities relating to the extent applicableoperation of the Business on or before the Closing, (d) Liabilities arising out of or relating to any product liability, breach of warranty or similar claim for injury to person or property which resulted from the Xxxxxx Group agrees use or misuse of, or otherwise related to honor Product, used, manufactured, or sold before the Closing, (e) Seller’s liabilities for Taxes and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything for Taxes attributable to the contrary contained herein, Assets or the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply Business for all taxable periods (or portions thereof) ending on or prior to the extent that Closing Date, (f) litigation currently pending against Seller or, to the Xxxxxx Indemnified Parties are the causeknowledge of Seller, either directly or indirectlycurrently threatened against Seller, (g) obligations, liabilities and commitments of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, Seller with respect to any guarantees issued by Parent that are listed on Schedule 5.09 employee or contractor of Seller or the Business, including for salary, wages, overtime, severance, benefits or other monetary obligations relating or owed to any of such employees or contractors, (h) obligations, commitments and any other guarantees by Parent of any obligations liabilities arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfiedExcluded Assets, and the Xxxxxx Indemnified Parties shall (i) other obligations, liabilities and commitments of Seller that are not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreementan Assumed Liability.

Retained Liabilities. Without limiting Except for the Assumed Liabilities, Buyer shall not have any other -------------------- provision obligation for, or with respect to, any Liabilities of this AgreementAsset Seller of any nature whatsoever (whether asserted or unasserted, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09absolute or contingent, liquidated or unliquidated, accrued or unaccrued, whether due or to become due, and whether incurred prior to, on or after the Closing Date), including those arising from or relating to: (i) Asset Seller’s operations on or prior to the extent applicableClosing Date, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of including any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations Liability arising from the Fluor Business that survive the Distributionactual or alleged breach of any applicable Law (including any Liability arising under Environmental Law and relating to, or arising from, Asset Seller, the Business as operated by the Asset Seller, or the Purchased Assets, including relating to, or arising from, (x) the Leased Property or any other real property now or previously owned, operated or leased by Asset Seller, in each case for periods prior to the Closing Date, (y) the off-site transportation, disposal or arranging for the off-site disposal of any Hazardous Materials, or (z) the release of Hazardous Materials in, at, on, from or emanating from the Leased Property or any other real property presently or formerly owned, operated or leased by Asset Seller), (ii) any Indebtedness of Asset Seller that is not fully reflected or reserved for on the Final Adjustment Statement, (iii) any Business Plans owned by the Asset Seller, (iv) the breach of any Contract by Asset Seller occurring on or prior to the Closing Date, (v) any litigation or proceeding pending against Asset Seller, (vi) any product manufactured, distributed, shipped or sold, and any services provided (or the alleged failure to provide such services) by Asset Seller on or prior to the Closing Date (without regard to (x) the basis or theory of claim (negligence, strict tort, breach of express or implied warranty, fraud or failure to warn, test, inspect or instruct, infringement claims and any related claims, or otherwise), (y) the nature of the damages sought (property damage, economic loss, personal injury, wrongful death or other), or (z) whether the claim arose or is asserted before or after the Closing), (vii) any claims pending, or that may hereafter be made, against Asset Seller or any failure by Asset Seller to comply with all applicable Law regarding current or former employees or other service providers, (viii) any violation of fraudulent transfer or bulk sales laws by Asset Seller or Liabilities relating to or arising from any “defacto merger” or “successor in interest” theories of Liability, (ix) any Selling Expenses of the Asset Seller Parties, (x) the Taxes of the Asset Seller (including any liability for either failing to file any Tax Return or for unpaid Taxes of the Asset Seller, including based upon a Taxing Authority’s re-characterization of a reported transaction), any Taxes related to the operation of the Business prior to the Closing, any Taxes related to, or imposed upon, the Purchased Assets, or their ownership, prior to the Closing, any obligations of Asset Seller to indemnify or otherwise assume or succeed to the Xxxxxx Group Tax liability of any other Person by reason of Contract, assumption, transferee liability, operation of applicable Law, Section 1.1502-6 of the Treasury Regulations (or any predecessor or successor thereof, or any analogous or similar provision under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfiedapplicable Law) or otherwise, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof all Transfer Taxes, and (bxi) any Excluded Asset, including any Excluded Contract (the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees Liabilities listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing described in this Section 5.09 shall impose any obligation or liability whatsoever on paragraph being collectively referred to as the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement“Retained Liabilities,” and each a “Retained Liability”).

Retained Liabilities. Without limiting any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Sellers shall retain responsibility for performing when due, and Buyer shall not assume or have any responsibility for, all liabilities of Sellers related to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: Purchased Assets other than the Assumed Liabilities, including (a) the Xxxxxx Group provides New Fluor with prompt written notice ownership and operation of any claims made under such guarantee the Business and tenders the defense of such claims Purchased Assets prior to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and Closing; (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect Excluded Assets; (c) the termination of any claims made under such guarantee. With respect employees of Sellers who are not Transferred Employees; (d) Transferred Employees who do not report for work with Buyer upon the Closing; and (e) any liability relating to the guarantees listed on Schedule 5.09 and or arising out of any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any employment action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group practice in connection with Seller’s employment or termination of employment of any such guarantee. The obligations set forth persons currently or formerly employed or seeking to be employed by the Sellers, including liabilities based upon breach of employment contract, employment discrimination, wrongful termination, wage and hour compliance (including, without limitation, employee classification, overtime and minimum wage obligations), independent contractor classification, health and safety requirements, immigration and/or worker authorization requirements, disability accommodation and leave laws, workers’ compensation, constructive termination, failure to give reasonable notice or pay in this Section 5.09 shall be in addition to lieu of notice, severance or termination pay or the Consolidated Omnibus Budget Reconciliation Act, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Worker Adjustment Retraining Notification Act of 1988, as amended, the Fair Labor Standards Act, as amended, or the National Labor Relations Act, as amended, or any obligation of New Fluor to indemnify equivalent state, municipal, county, local, foreign or other Law (collectively, the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement“Retained Liabilities”).

Retained Liabilities. Without limiting Notwithstanding anything in this Agreement -------------------- to the contrary, Purchaser is not assuming and will not perform any liabilities or obligations not specifically described herein, whether fixed or contingent, known or unknown, disclosed or undisclosed, recorded or unrecorded and whether relating to the Seller Portfolio or any other -------------------- provision matter, facts or circumstances, including without limitation the following: (a) federal, state or local tax liabilities or obligations of Seller whether or not incurred prior to the date hereof or resulting from the consummation of the transactions contemplated herein, (b) any obligation or liability for services rendered by Seller, (c) any liability or obligation of Seller for or in respect of any loan, account payable or indebtedness, (d) any liability or obligation of Seller arising as a result of or out of any claim, any legal or equitable action, proceeding or investigation pertaining to or relating in any way to Seller initiated at any time, whether or not described in any schedule hereto, (e) any obligation or liability upon acts or omissions of Seller, (f) any liability or obligation of Seller incurred in connection with the making or performance of this Agreement, (g) any liability or obligation of Seller for making payments of any kind (including as a result of the Xxxxxx Group acknowledges sale of the obligations and liabilities set forth on Schedule 5.09Seller Portfolio ), and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply (h) to the extent that the Xxxxxx Indemnified Parties are Seller is liable pursuant to the causeISO Agreement, either directly liability for any chargebacks, fines or indirectly, of any matter, activity or omission resulting in Losses due losses related to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 Seller Portfolio and any other guarantees by Parent of any obligations related handling fees arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with transactions by Merchants which occur prior to the PPDC3Q0934 Effective Date, (i) liabilities or obligations arising out of any such guarantee. The obligations set forth breach by Seller prior to the Closing of any contract included in this Section 5.09 shall be in addition the Seller Portfolio, and G) any payments of any kind which Seller may owe to employees, independent contractors, agents, vendors or any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreementother third parties.

Retained Liabilities. Without Except as set forth in Section 2.1, Purchaser is not assuming any of the liabilities or obligations of Seller. At the Closing, except for the Assumed Liabilities, Seller shall retain and remain liable for all of its liabilities and obligations, whether direct or indirect, matured or unmatured, known or unknown, absolute, accrued, contingent or otherwise, and whether now existing or hereafter arising (collectively, the “Retained Liabilities”). By way of example, and without limiting the generality of the foregoing, the Retained Liabilities include all of Seller’s indebtedness for borrowed money, payments under capitalized leases, obligations in respect of letters of credit and performance bonds; any Liability related to Benefit Plans or relating to payroll, severance, bonuses, vacation (other than Vacation and Sick Day Liability), workers’ compensation, unemployment benefits, any employment agreement, retention or termination agreement, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other -------------------- provision Benefit Plans or benefits of this Agreementany kind, salaries and employment taxes in each case, for Seller’s employees or former employees arising or relating to an employment period prior to the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and Closing; any Liability arising out of or relating to products of Seller to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything manufactured or sold prior to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply Closing other than to the extent assumed by Purchaser under Section 2.1; any Liability for Taxes of Seller arising as a result of Seller’s operation of the Business or ownership of the Target Assets for any taxable period ending on or before the Closing Date and for the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Xxxxxx Indemnified Parties Closing Date; any Liability arising out of or relating to any employee grievance arising prior to the Closing whether or not the affected employees are hired by Purchaser; any Liability of Seller to any shareholder or Affiliate of Seller or such shareholder; any Liability relating to any payments that may become payable to any employee or former employee of Seller as a result of the cause, either directly consummation of the Contemplated Transactions (other than Vacation and Sick Day Liability and payments due pursuant an agreement between Purchaser and any employee of a Seller); any Liability arising out of or indirectly, resulting from Seller’s compliance or noncompliance with any Law or Order of any matterGovernmental Authority at or prior to the Closing, activity including without limitation any Law or omission resulting Order relating to employment practices and payments; and any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Seller, except for employee expense reimbursements incurred in Losses due to breach the ordinary course of business that are reflected on the Sellers’ accounting records as of the Closing Date, except, in each case and only to the extent such Liability has been included in the final calculation of Net Working Capital as of the Closing Date. Seller shall discharge and perform in full when due all of the Retained Liabilities. For avoidance of doubt, and without limiting the generality of the foregoing, the Retained Liabilities include all obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations all Damages arising from or relating to the Fluor Business that survive the Distribution, the obligations operation of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfiedBusiness through the Closing Date, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect including without limitation, Taxes relating to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation Assets through the Closing Date (notwithstanding the fact that relate such Taxes may become payable after the Closing Date), except to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreementextent expressly designated as an Assumed Liability.

Retained Liabilities. Without limiting any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained hereinin this Agreement and regardless of whether such liability or obligation is disclosed herein or on any schedule or exhibit hereto, neither Buyer nor any of its Affiliates shall assume or be liable for any liabilities or obligations of Seller of any kind or nature except for those liabilities and obligations which are expressly assumed pursuant to Section 2.3 above. Without limiting the New Fluor indemnity provisions described generality of the foregoing, Buyer shall not assume any obligations and liabilities of Seller resulting from, arising out of, relating to, in the nature of or caused by any (i) Retained Asset, (ii) Taxes relating to the conduct of the Business prior to Closing and any other Taxes relating to the DSL Business or any other non-Business activities of Seller, (iii) indebtedness for borrowed money or deferred purchase price for fixed assets, (iv) inter-company payables, loans or other inter-company liabilities or obligations of any kind or nature, (v) breach of contract, breach of warranty, tort, infringement or violation of any Legal Requirement to the extent arising out of facts, events, actions or inactions occurring prior to the Closing, (vi) litigation, claim, assessment, action, suit, proceeding, order, judgment, decree or investigation of any kind or nature arising out of facts, events, actions or inactions occurring prior to the Closing, (vii) employment and employee benefits-related claims, obligations and liabilities of any Transferred Employees incurred in relation to the period of employment with Seller or its Affiliates prior to and including the Closing Date (except to the extent expressly assumed by Buyer as reflected in Section 3.01 9.6), (viii) employment and employee benefits-related claims, obligations and liabilities of any employees of Seller or any of its Affiliates who are not Transferred Employees (including former employees) whether incurred prior to or after the Closing Date, (ix) fees, costs or expenses incurred by Seller in connection with the preparation, negotiation, execution, delivery and performance of this Agreement shall not apply to and the extent that the Xxxxxx Indemnified Parties are the causeother transactions contemplated hereby, either directly or indirectlyand (x) those accrued liabilities, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities expenses expressly set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the DistributionSCHEDULE 2.4 hereto (collectively, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement"RETAINED LIABILITIES").

Retained Liabilities. Without limiting Effective as of the Closing Date, (A) the Majority Sellers shall, jointly and severally, assume and agree to satisfy any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, all amounts that become due and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities payable following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, Closing Date with respect to any guarantees issued by Parent Pre-Closing Liability attributable to any period ending on or before December 31, 2002 and (B) all Sellers shall, jointly and severally, assume and agree to satisfy any and all amounts that are listed on Schedule 5.09 become due and any other guarantees by Parent of any obligations arising from payable following the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 Closing Date with respect to any such guarantee Pre-Closing Liability attributable to any period from and after January 1, 2003 to the Closing Date, it being understood that in either case, except in the case of a Shortfall Amount (as hereinafter defined), no Seller shall be deemed fully satisfiedrequired to make any cash payment to Company hereunder; rather, Company shall use any and all proceeds it receives in respect of the Xxxxxx Indemnified Parties shall not suffer Accounts Receivable during each Monthly Period to pay and satisfy in full any diminution of indemnity rights otherwise available under this agreement for Losses arising from and all Pre-Closing Liabilities that are due and payable during such guarantee if: Monthly Period, with the net amount thereof (athe "Net Amount") being remitted to the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders Majority Sellers and/or all Sellers, as the defense of such claims to New Fluor case may be, in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees2.5 above; provided, however, the parties hereto hereby agree that nothing prior to determining the Net Amount as contemplated hereby, any and all Pre-Closing Liabilities incurred in this each Monthly Period shall be reduced by any expenses of Company in respect of such Monthly Period that any Seller, Company or any Affiliate thereof pre-paid prior to the Closing Date as set forth on Schedule 2.6 hereto (the "Pre-Paid Expense Credits"), it being understood that such pre-paid expenses shall not include any pre-paid expenses referenced in Section 5.09 2.4 hereof. Within twenty (20) calendar days following the end of each Monthly Period, and together with the Net Amount to be paid by Company pursuant to Section 2.5 above, Company shall impose deliver to all Sellers a notice (the "Notice") setting forth all Accounts Receivable received and all Pre-Closing Liabilities paid by Company during such Monthly Period and all Pre-Paid Expenses Credits attributable to such Monthly Period, such Notice to include evidence of each Account Receivable received and each Pre-Closing Liability paid during such Monthly Period and, in the case of any obligation Pre-Closing Liability which relates to a product purchased or liability whatsoever on the New Fluor Group a service rendered to any member Company during such period, such Notice shall also attach a copy of the Xxxxxx Group for taking any action invoice from the seller or refraining from taking any action in the defenseservice provider thereof; provided, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee however, Buyer and Company hereby acknowledge and agree that the New Fluor Group determines in good faith to be appropriate in protecting the interests payment obligations of the New Fluor Group each Seller with respect to the Pre-Closing Liabilities as contemplated by the immediately preceding sentence shall not include any amounts that may accrue from time to time as interest, penalty or other form of liquidated damages pursuant to the terms of any contract, invoice, purchase order or other agreement relating to such claimPre-Closing Liability to the extent such interest, except penalty or other form of liquidated damages has accrued or become due and owing by Company due to the failure of Buyer, Company or any Affiliate thereof to timely process and pay any invoice related thereto in accordance with the terms thereof. In the event that the New Fluor Group shall use commercially reasonable efforts to cause aggregate Pre-Closing Liabilities (as reduced by the prompt release of Pre-Paid Expense Credits, if any) are greater than the aggregate Accounts Receivable during any lien imposed on any assets of Monthly Period (the Xxxxxx Group in connection with any such guarantee. The obligations "Shortfall Amount"), as set forth in this Section 5.09 shall be in addition the Notice delivered by Company to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees Sellers pursuant to Section 3.01(ethe terms hereof, then all Sellers, jointly and severally, agree to pay to Company such Shortfall Amount, such payment to be made within five (5) business days following receipt of this Agreementthe Notice, by wire transfer of immediately available funds to the account or accounts designated by Company to Sellers in the Notice or by such other method as Sellers and Company shall mutually agree. Notwithstanding the foregoing, all of Sellers' and Company's obligations under Sections 2.5 and 2.6 shall cease at the end of the True-Up Period.

Retained Liabilities. Without limiting 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 -------------------- provision than Purchaser and its Affiliates, so long as such contest does not result in a Lien upon any of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and Assets): except to the extent applicableany such liability is reflected on the Closing Date Balance Sheet as a current liability of the Business, any loss or liability of the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything Company of any nature or description, whether liquidated or contingent, to the contrary contained herein, extent (a) resulting from events or conditions which occurred or existed prior to the New Fluor indemnity provisions described Transfer Time or (b) arising out of or relating to the Excluded Assets (including those items identified as Retained Liabilities in Section 3.01 1.08); any loss or liability relating to current or former employees of this Agreement shall 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; all Liabilities with respect to gaming chips and tokens issued by the Company (but not apply progressive meters), except as provided otherwise herein; 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; 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 Xxxxxx Indemnified Parties are accrual for such payables and expenses has been properly reflected on the causeClosing Balance Sheet and other than to the extent arising following the Transfer Time under Contracts that constitute Assets); any Liability, either directly whether currently in existence or indirectlyarising hereafter, owed by the Company to any of its Affiliates; all Liabilities related to any matter, activity fines or omission resulting in Losses due to breach of penalties imposed against the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, Company (or with respect to the Business or any guarantees issued Asset) by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the DistributionGovernmental or Regulatory Authority (including, without limitation, the obligations Commission) prior to the Transfer Time; and <page>all other Liabilities of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and Company other than the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementAssumed Liabilities.

Retained Liabilities. Without limiting any other -------------------- provision of this AgreementOn the Closing Date, the Xxxxxx Group acknowledges Buyer shall assume, perform and discharge the obligations and liabilities set forth on Schedule 5.09of KMD under the Equipment Leases and the Included Contracts (collectively, and the "Assumed Contracts") pursuant to an Assumption Agreement substantially in the form of EXHIBIT F hereto (the "Assumption Agreement"), provided that Buyer shall have received all necessary consents with respect to the extent applicable, assignment thereof to Buyer and provided further that Buyer shall assume KMD's obligations under the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply Assumed Contracts only to the extent that (i) Sellers' representations and warranties with respect to the Xxxxxx Indemnified Parties Assumed Contracts are true and correct in all material respects and (ii) such obligations of performance arise and relate to events occurring on or after the cause, either directly Closing Date. No other liabilities or indirectly, obligations of any matter, activity Sellers are expressly or omission resulting in Losses due to breach by implication being assumed by Buyer under this Agreement. Without limiting the generality of the preceding sentence, Sellers shall retain all obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding(known or unknown, contingent or fixed, liquidated or unliquidated, accrued or unaccrued, "Liabilities") relating to, arising out of or accruing from the operation of the Business prior to the Closing Date, including, without limitation: any and all obligations of KMD for performance under Contracts (other than obligations for performance arising after the Closing Date under the Assumed Contracts); any and all Taxes with respect to the operation of KMD or the Business or the ownership, use or leasing of any of the Assets on or prior to the Closing Date; any and all Liabilities pertaining to any time period prior to the Closing Date under any Environmental Law; any and all Liabilities with respect to any guarantees issued by Parent that are listed on Schedule 5.09 Benefit Plan; any and all Liabilities arising from any claims in respect of, or other obligations pertaining to, the Excluded Assets; any and all Liabilities with respect to professional liability claims pertaining to any time period prior to the Closing Date; any and all Liabilities with respect to the accounts payable or other current liabilities of KMD pertaining to any time period prior to the Closing Date; any and all Liabilities of Sellers under any Clinical Laboratory Improvements Act ("CLIA") license or provider number of KMD pertaining to any time period prior to the Closing Date including, without limitation, the KMD Medicare provider agreement and Medicare provider number L220810 pertaining to services performed at the Facilities; and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 and all Liabilities with respect to any such guarantee shall be deemed fully satisfiedfalse claims, and the Xxxxxx Indemnified Parties shall not suffer civil or criminal enforcement actions, civil money penalties, administrative sanctions or other Liabilities related to any diminution overpayment for services performed by or billed by or on behalf of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect KMD prior to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor BusinessClosing Date (collectively, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e"Retained Liabilities") of this Agreement.

Retained Liabilities. Without limiting Any Liability whatsoever, whether fixed or contingent, recorded or unrecorded, known or unknown, with respect to the Hotel that accrues and/or arises solely from events which occurred prior to the Closing (except as otherwise expressly set forth herein), including, but not limited to (subject to the foregoing limitations): (a) any Seller Encumbrance; (b) any and all accounts payable or other -------------------- provision trade payables not included within the definition of Post-Closing Accruals or for which Purchaser received a credit for at Closing; (c) to the extent not included within the definition of Post-Closing Accruals or for which Purchaser received a credit at Closing or for which Purchaser is responsible for pursuant to the express terms of this Agreement, tax obligations, including without limitation, all federal, state, local or special purpose district tax and withholding liabilities and obligations of Seller or any of its respective Affiliates with respect to periods prior to the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Closing, and any interest, fines or penalties thereon or with respect to returns filed or required to be filed in connection therewith (including, without limitation, any recapture and including any amounts due or which may come due and owing under applicable Legal Requirements; provided that Purchaser shall be solely responsible for any fines, interest or penalties resulting from Purchaser or its Affiliates failure to pay such taxes included in the definition of Post-Closing Accruals or for which Purchaser received a credit for at Closing or for which Purchaser is responsible for pursuant to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge express terms of this Agreement); (d) Liabilities arising from any claims by third parties (but excluding in all such obligations and liabilities following the Distribution Date. Notwithstanding anything instances any Affiliate of Purchaser or any of their respective Affiliates) for personal injury or property damage arising out of events occurring prior to the contrary contained hereinClosing caused by any violation of Environmental Laws that were in effect and valid at the time in question; (e) Liabilities or obligations of Seller or its Affiliates for brokerage or other commissions relating to the transactions contemplated herein subject to the terms of Section 14.1(b) and Purchaser’s obligations thereunder; (f) Liabilities relating to or arising from any contracts between Seller and any of its Affiliates; (g) any security and other deposits, the New Fluor indemnity provisions described in Section 3.01 of advance or prepaid rents, and key money (including any interest thereon) not prorated pursuant to this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach for which Purchaser received a credit at Closing and held by Seller from tenants of the obligations and liabilities Hotel with Space Leases in effect as of the Closing; (h) any Liability or obligation for advance Bookings if any deposits related thereto that were actually received by Seller are not prorated pursuant to this Agreement or set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement Preliminary Closing Statement or for Losses arising from such guarantee if: which Purchaser received a credit for at Closing (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 Purchaser shall impose any obligation honor all Bookings regardless of whether or liability whatsoever on the New Fluor Group not a reservation deposit was credited to any member Purchaser as part of the Xxxxxx Group for taking prorations hereunder); (i) any action or refraining liability arising from taking any action in the defensetermination, settlement discharge, layoff or other handling separation from employment of any claim against any member of Manager’s or Seller’s employees prior to the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claimClosing, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations as otherwise expressly set forth in this Section 5.09 shall be in addition Agreement; (j) any Liability relating to or arising from the Condominium Declaration and the Waterview Declaration that accrued prior to the period before Closing; and (k) to the extent not included within the definition of Post-Closing Accruals or otherwise prorated pursuant to this Agreement or for which Purchaser received a credit at Closing, any obligation of New Fluor to indemnify the Xxxxxx Group Liability with respect to Losses related goods and services or the purchase of goods and services to the extent such guarantees pursuant goods were delivered at the Hotel or the services were rendered prior to Section 3.01(e) or at the Closing and were ordered at the request of this AgreementSeller or Manager.

Retained Liabilities. Without limiting 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 -------------------- provision than Purchaser and its Affiliates, so long as such contest does not result in a Lien upon any of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and Assets): except to the extent applicableany such liability is reflected on the Closing Date Balance Sheet as a current liability of the Business, any loss or liability of the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything Company of any nature or description, whether liquidated or contingent, to the contrary contained hereinextent (a) resulting from events or conditions which occurred or existed prior to the Transfer Time, or (b) arising out of or relating to the New Fluor indemnity provisions described Excluded Assets (including those items identified as Retained Liabilities in Section 3.01 1.08); any loss or liability relating to current or former employees of this Agreement shall 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; all Liabilities with respect to gaming chips and tokens issued by the Company (but not apply progressive meters), except as provided otherwise herein; 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; 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 Xxxxxx Indemnified Parties are accrual for such payables and expenses has been properly reflected on the causeClosing Balance Sheet, either directly and other than to the extent arising following the Transfer Time under Contracts that constitute Assets); <page>any Liability, whether currently in existence or indirectlyarising hereafter, owed by the Company to any of its Affiliates; all Liabilities related to any matter, activity fines or omission resulting in Losses due to breach of penalties imposed against the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, Company (or with respect to the Business or any guarantees issued Asset) by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the DistributionGovernmental or Regulatory Authority (including, without limitation, the obligations Commission) prior to the Transfer Time; and all other Liabilities of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and Company other than the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementAssumed Liabilities.

Retained Liabilities. Without limiting any other -------------------- provision Sellers agrees to reimburse AmeriPath and its Affiliates (including the Practice) and hold harmless from and against (i) all liabilities of this Agreementthe Practice, whether known or unknown, contingent or otherwise relating to time periods arising or accruing prior to the Closing Date, including all Taxes attributable to such periods and all litigation relating to such periods and (ii) all fees, costs and expenses of the lawyers and financial advisors for the Practice or the Sellers (such liabilities collectively, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees“Retained Liabilities”); provided, however, that nothing the Retained Liabilities shall be offset by any amounts that have been prepaid by the Practice for expenses arising after the Closing Date which benefit AmeriPath or its affiliates and which are identified by the Sellers in writing on or prior to December 31, 2005 (the “Pre-Paid Expenses”) Notwithstanding the foregoing, Retained Liabilities shall not include liabilities of the Practice owed to the Practice’s employees for vacation and compensatory time (up to a maximum for each employee of 120 hours) that have accrued prior to the Closing Date and that are listed in 4.12 (collectively, the “Vacation Liabilities”). AmeriPath shall have the right, in its sole discretion, to pay any Retained Liability without prior notification to the Sellers and without affecting AmeriPath’s rights hereunder, including AmeriPath’s indemnification rights under this Section 5.09 4.12 or Section 6.2. The Retained Liabilities incurred and paid by AmeriPath on or prior to December 31, 2005, after taking into account any offset for Pre-Paid Expenses (the “Initial Liability Adjustment Amount”), shall impose any obligation or liability whatsoever be paid by Sellers in accordance with the percentages set forth on Schedule 4.13 and shall be paid on the New Fluor Group to any member Scheduled Payment Date, as defined in Section 4.13. The Retained Liabilities paid or incurred by AmeriPath after December 31, 2005 (after taking into account the offset for Pre-Paid Expenses, if any) shall be paid by Sellers in accordance with the percentages set forth on Schedule 4.13 within thirty (30) days after AmeriPath provides Sellers with notice of the Xxxxxx Group for taking any action or refraining from taking any action in the defenseRetained Liabilities, settlement or other handling together with reasonable documentation of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementRetained Liabilities.

Retained Liabilities. Without limiting Except for the Assumed Liabilities, American shall not assume and shall not be liable or responsible for any other -------------------- provision Liabilities of this Agreementthe Transferors of any kind whatsoever, including: (i) Liabilities relating to any current or former employees of the Xxxxxx Group acknowledges Transferors (excluding any Liabilities related to the obligations Specified Property Managers Employees that become Transferred Employees under the Master Modification Agreement and liabilities set forth on Schedule 5.09, and then only to the extent applicablearising out of periods occurring after the Closing of the Master Modification Agreement (solely for the purposes of this parenthetical, each capitalized term used in this parenthetical shall have the meaning set forth in the Master Modification Agreement)), who are separated from employment prior to the Closing Date, including, but not limited to, Liabilities related to any obligation by American or its Subsidiaries to remedy any event or condition occurring or existing in connection with, or arising out of, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything Property Management Business as operated prior to the contrary contained herein, Closing Date; (ii) Liabilities relating to the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply Property Management Employees to the extent that relating to or arising out of periods occurring on or prior to the Xxxxxx Indemnified Parties are the causeClosing Date, either directly including any severance or indirectly, of any matter, activity other payments or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect benefits paid or payable to any such guarantee shall be deemed fully satisfiedProperty Management Employee; (iii) Liabilities relating to events or conditions occurring or existing in connection with, or arising out of, the Property Management Business as operated prior to the Closing Date, or the ownership, use, operation or sale prior to the Closing Date of any Acquired Assets; (iv) Liabilities for Taxes of the Transferors or any of their respective Affiliates whenever and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses however arising, including Taxes arising from such guarantee if: or relating to the Remaining Self-Management Transactions; (av) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise Liabilities in respect of any claims made “defined benefit pension plan” (as defined in Section 3(35) of ERISA), any plan subject to Section 412 of the Code or Section 302 of Title IV of ERISA, any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or any post-employment life or health coverage maintained or contributed to by the Transferors or any of their respective ERISA Affiliates; (vi) Liabilities under such guarantee. With respect to the guarantees listed on Schedule 5.09 any Existing Transferors Benefit Plans; and (vii) any other guarantees by Fluor Corporation that relate to the Fluor BusinessLiability relating to, or arising out of, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent ownership or operation of any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in Excluded Assets (collectively, the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement“Retained Liabilities”).

Retained Liabilities. Without limiting any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09The Company shall remain liable for, and to shall pay and perform any Liability of the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, Company of any matternature or type regardless of when accrued, activity or omission resulting in Losses due to breach of the obligations and liabilities except as set forth in Section 1.3 above, including, but not limited to: (i) any tax liability of the Company incurred through the Effective Time (the "Retained Taxes"), (ii) those ordinary course Liabilities listed on Schedule 5.09. The foregoing notwithstanding1.6(b) attached hereto (the "Retained Trade Liabilities"); (iii) Liabilities incurred in connection with the leases listed on Schedule 2.9 (the "Retained Lease Liabilities"); (iv) Liabilities arising from express or implied product warranties applicable to products designed, manufactured or sold by Company (the "Retained Warranty Liabilities"); (v) Liabilities arising from the performance of any Contracts (the "Retained Contract Liabilities"); (vi) Liabilities arising from manufacturing operations, including, but not limited to, workers' compensation and environmental claims (the "Retained Operations Liabilities"); (vii) Liabilities arising from labor relations or the hiring, discipline, payment or discharge of hourly or salaried employees (the "Retained Employment Liabilities"); (viii) Liabilities incurred with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent pension, employment severance agreement, 401(k) or profit sharing plan, including, but not limited to, those liabilities arising as a result of any obligations this transaction or arising from changes made to such pension, employment severance agreement, 401(k) or profit sharing plan after the Fluor Business that survive the Distribution, the obligations date of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: transaction (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof "Retained Pension Liabilities"); and (bix) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any Liabilities relating to claims made under such guarantee. With respect or product returns due to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate damage during shipment, minor product defects or product claims relating to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group shortages in connection with any products sold by the Company (the "Retained Delivery Liabilities") (all such guarantee. The obligations set forth in this Section 5.09 shall be in addition Liabilities of the Company collectively referred to any obligation of New Fluor to indemnify herein as the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement"Retained Liabilities").

Retained Liabilities. Without limiting Except for the Assumed Liabilities, the Purchasers shall not assume, or be deemed to assume, under this Agreement or otherwise by reason of the Contemplated Transactions, any other -------------------- provision liabilities, obligations or commitments of this Agreementthe Sellers of any nature whatsoever, including, but not limited to, any liability or obligation of the Sellers listed in Section 2.2(c) of the Disclosure Schedule and Retained Inventory Liabilities (as defined herein) (collectively, the Xxxxxx Group acknowledges “Retained Liabilities”). For the obligations and liabilities set forth on Schedule 5.09, and to the extent applicablesake of clarification, the Xxxxxx Group agrees to honor Sellers shall be responsible for any and properly discharge all such Retained Liabilities, including, but not limited to, any and all liabilities, payable debts, amounts due and obligations and liabilities following that have been incurred, undertaken, ordered or otherwise engaged by the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, Sellers with respect to any guarantees issued the Driver Games and Franchise and Company’s Business prior to Closing (this includes payments for all milestones approved by Parent that are listed on Schedule 5.09 Sellers regardless of whether such have been invoiced to Sellers, including, but not limited to, Milestone 7 (May), Milestone 8 (June) and any other guarantees by Parent Milestone 9 (July) for the PSP Driver game; and further, Sellers shall not unreasonably withhold or delay Sellers’ approval of any obligations arising from the Fluor Business that survive the Distributionmilestones), the obligations which if not discharged or paid in full prior to Closing shall be part of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guaranteeRetained Liabilities after Closing. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group The Sellers shall discharge in a timely manner any and all obligations secured by of the Retained Liabilities that in any way affect the Acquired Assets and in such guarantees a manner so the Acquired Assets are not damaged or their use or enjoyment prejudiced or infringed upon in any manner. Failure to do so will be a Material Adverse Change for the Purchasers and any damages, losses, expenses, costs or attorneys’ fees shall be deemed Purchasers’ Losses. Without limiting what is said in the preceding sentence, the Sellers shall be responsible for: (i) all the financial liabilities (A) associated with the use commercially reasonable efforts in Driver: Parallel Lines of specific musical compositions and/or sound recordings and/or (B) arising out of or relating to prevent any claim from being made the mechanical rights thereto under such guaranteesthe agreements set forth in Section 2.2(b) of the Disclosure Schedule (the “Retained Music Liabilities”) unless they become Later Assumed Liabilities; provided, however, that nothing in this Section 5.09 any and all Retained Music Liabilities (including, but not limited to, undischarged mechanical rights costs) as of the end of the twelve (12) month period after the Closing Date that exceed the limit of £300,000 shall impose any obligation or liability whatsoever remain Sellers’ sole responsibility and liability; for (ii) all salaries and wages (including taxes, vacation and sick pay) accrued and unpaid as of the close of business on the New Fluor Group to any member date before the Closing Date for the Company Employees listed in Section 2.1(a)(iii) of the Xxxxxx Group Disclosure Schedule; and for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member (iii) each lease and sublease set forth on Section 3.16 of the New Fluor Group covered by any such guarantee Disclosure Schedule (including, without limitation, that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group certain lease with respect to such claimthe office building located at Cxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxx Xxxxxxx, hereinafter referred to as the “Orchard Street Lease”), except for those certain financial obligations that will belong to Purchasers pursuant to the New Fluor Group shall use commercially reasonable efforts agreement to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group sublease by and between Sellers and Purchasers with respect to Losses related the Orchard Street Lease (the “Sublease Agreement”). The Sellers shall be responsible for all liabilities associated with or belonging to all Inventory that the Sellers sell, distribute, place or otherwise move into the distribution channel relating to the Games, including all returns, price protections, markdowns and any other allowances or liabilities for such guarantees pursuant to Section 3.01(e) of this AgreementInventory (collectively, the “Retained Inventory Liabilities”).

Retained Liabilities. Without limiting Except for the Assumed Liabilities, American shall not assume and shall not be liable or responsible for any other -------------------- provision Liabilities of this Agreementthe Inland Parties of any kind whatsoever, including: (i) Liabilities relating to any former employees of the Inland Parties, who were separated from employment prior to the Closing Date, including, but not limited to, Liabilities related to any obligation by American or its Subsidiaries to remedy any event or condition occurring or existing in connection with, or arising out of, the Xxxxxx Group acknowledges Business Manager Business or the obligations Property Managers’ business as operated prior to the Closing Date; (ii) subject to Section 2.3, Liabilities relating to the Business Manager Employees and liabilities set forth on Schedule 5.09, and Specified Property Managers Employees to the extent applicable, the Xxxxxx Group agrees relating to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything or arising out of periods occurring on or prior to the contrary contained hereinClosing Date, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly including any severance or indirectly, of any matter, activity other payments or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect benefits paid or payable to any such guarantee shall be deemed fully satisfiedBusiness Manager Employee or Specified Property Managers Employee; (iii) Liabilities relating to events or conditions occurring or existing in connection with, and or arising out of, the Xxxxxx Indemnified Parties shall not suffer Business Manager Business or Property Managers’ business as operated prior to the Closing Date, or the ownership, use, operation or sale prior to the Closing Date of any diminution Business Manager Acquired Asset or Property Managers Acquired Assets; (iv) Liabilities for Taxes of indemnity rights otherwise available under this agreement for Losses the Inland Parties, including Taxes arising from such guarantee if: or relating to the Self-Management Transactions; (av) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise Liabilities in respect of any claims made “defined benefit pension plan” (as defined in Section 3(35) of ERISA), any plan subject to Section 412 of the Code or Section 302 of Title IV of ERISA, any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or any post-employment life or health coverage maintained or contributed to by the Inland Parties or any of their respective ERISA Affiliates; (vi) Liabilities under such guarantee. With respect to the guarantees listed on Schedule 5.09 any Existing Inland Benefit Plan (except as contemplated by Section 5.2(a)); and (vii) any other guarantees by Fluor Corporation that relate to the Fluor BusinessLiability relating to, or arising out of, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent ownership or operation of any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in Excluded Assets) (collectively, the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement“Retained Liabilities”).

Retained Liabilities. Without limiting any other -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) Sellers shall retain responsibility for performing when due, and Buyer shall not assume or have any responsibility for, all liabilities of Sellers related to the Xxxxxx Group provides New Fluor with prompt written notice Business and the Purchased Assets other than the Assumed Liabilities, including (i) the ownership and operation of the Business and the Purchased Assets prior to the First Closing; (ii) the ownership and operation of the Second Closing Equity and Second Closing Facilities prior to the Second Closing; (iii) the Excluded Assets; (iv) the termination of any claims made under such guarantee and tenders employees of Sellers who are not Transferred Employees; (v) Transferred Employees who do not report for work with Buyer upon the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof First Closing; and (bvi) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect any liability relating to or arising out of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any employment action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group practice in connection with Seller’s employment or termination of employment of any such guarantee. The obligations set forth persons currently or formerly employed or seeking to be employed by the Sellers, including liabilities based upon breach of employment contract, employment discrimination, wrongful termination, wage and hour compliance (including, without limitation, employee classification, overtime and minimum wage obligations), independent contractor classification, health and safety requirements, immigration and/or worker authorization requirements, disability accommodation and leave laws, workers’ compensation, constructive termination, failure to give reasonable notice or pay in this Section 5.09 shall be in addition to lieu of notice, severance or termination pay or the Consolidated Omnibus Budget Reconciliation Act, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Worker Adjustment Retraining Notification Act of 1988, as amended, the Fair Labor Standards Act, as amended, or the National Labor Relations Act, as amended, or any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreementequivalent state, municipal, county, local, foreign or other Applicable Law.

Retained Liabilities. Without limiting any other -------------------- provision of this AgreementSeller shall retain all liabilities, the Xxxxxx Group acknowledges the duties and obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect all operating expenses related to the guarantees listed on Schedule 5.09 Purchased Assets and any other guarantees by Fluor Corporation that relate attributable to the Fluor Business, period before the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees Effective Time and use commercially reasonable efforts to prevent any claim from being made under such guaranteesduring the time that Sellers owned the affected Purchased Assets; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member (i) Sellers’ retention of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 2.5(a) shall terminate on the first anniversary of the Closing, (ii) any claim against Sellers under this Section 2.5(a) which is not asserted by a notice as herein provided within such time period may not be pursued and shall thereafter be forever barred and (iii) after such termination, such obligations shall become Assumed Liabilities, (b) royalties and rentals (including the Suspension Amounts) due under the Purchased Assets attributable to the period before the Effective Time and any interest or penalties arising directly in addition connection therewith, (c) Taxes related to the Purchased Assets and attributable to the period before the Effective Time, (d) any liability or obligation of New Fluor Sellers which is not a Permitted Lien under any note, bond or indenture where Sellers are the obligor, (e) any liability arising out of or resulting from the employment relationship between Sellers and any of their current or former employees or the termination by Sellers prior to indemnify the Xxxxxx Group Closing Date of any such employment relationship with Sellers, including, without limitation, liabilities for severance or similar benefits or with respect to Losses related to such guarantees pursuant to Section 3.01(eany claim for wrongful discharge, breach of contract, unfair labor practice, violation of the Worker Adjustment and Retraining Notification Act, continued health benefits, employment discrimination, unemployment compensation or workers’ compensation, (f) any liability occurring as a result of this AgreementAgreement and arising out of, relating to or resulting from any bulk transfer or similar laws of any jurisdiction and (g) the injury or death of any person in connection with the ownership, operation or use of the Purchased Assets prior to the Closing without limit and notwithstanding anything to the contrary contained herein (the “Retained Liabilities”).

Retained Liabilities. Neither the Purchaser nor any Affiliate of the Purchaser shall assume, or otherwise be responsible for any and all Liabilities of the Seller Parties and their Affiliates not expressly assumed as an Assumed Liability in Section 2.3, whether liquidated or unliquidated, or known or unknown, whether arising out of occurrences prior to, at or after the Closing Date. Without limiting any other -------------------- provision limitation of the foregoing provisions of this AgreementSection 2.4, it is expressly agreed and understood that neither the Xxxxxx Group acknowledges Purchaser nor any Affiliate of the obligations and Purchaser shall assume any of the following liabilities set forth on Schedule 5.09, and of the Seller Parties: any Liability of the Seller Parties to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described or in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, respect of any matter, activity employees or omission resulting in Losses due to breach former employees of the obligations Seller Parties or their Affiliates, including, (i) any claim or demand of a current or former employee relating to or arising as a result of employment, termination by the Seller Parties thereof, or an employment agreement, whether or not written, between a Seller Party or its Affiliates and liabilities set forth in Schedule 5.09. The foregoing notwithstandingany Person, including, for this purpose, with respect to any guarantees issued Person claiming entitlements or benefits on the basis of a claimed employer-employee relationship 19 CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. between a Seller Party and such Person, (ii) any Liability under any employee plan at any time maintained, contributed to or required to be contributed to by Parent that are listed on Schedule 5.09 or with respect to a Seller Party or its Affiliates or under which a Seller Party or its Affiliates may incur Liability, or any contributions, benefits or Liabilities therefor, or any Liability with respect to a Seller Party's or its Affiliates' withdrawal or partial withdrawal from or termination of any employee plan, (iii) any Liability under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") arising as a result of any act or omission by Seller Parties, (iv) any Liability of a Seller Party or its Affiliates under the WARN Act, and any other guarantees similar state, local U.S. or non-U.S. law or regulation, (v) any Liability of a Seller Party or its Affiliates for Severance, accrued vacation and/or paid time and/or mandatory or customary payment and/or benefit and/or entitlement for employees of a Seller Party 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 prior to the Closing Date or is based on acts or omissions by Parent any Seller Party which occurred prior to the Closing Date; except as provided in Section 2.9, any Liability of a Seller Party or its Affiliates in respect of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 Tax with respect to any Tax period (including any liability for the Taxes of any other Person (i) under Treasury Regulation Section 1.1502- 6 (or any similar provision of state, local, or foreign law), (ii) as a transferee or successor, (iii) by contract or otherwise (iv) and any Liability for Tax attributable to the Acquired Assets or the Business with respect to any Pre-Closing Tax Period, including any Liability for the breach of the terms of any "approved enterprise" programs received by the Company which may result from the transactions contemplated by this Agreement (such guarantee Liability for Taxes for the portion of any 20 CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Straddle Period ending on the Closing Date shall be determined as follows: (A) in the case of any Taxes other than Taxes based upon or related to income or receipts, the portion allocable to the Straddle Period ending on the Closing Date shall be deemed fully satisfiedto be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending on the Closing Date and the Xxxxxx Indemnified Parties denominator of which is the number of days in the entire Straddle Period; and (B) in the case of any Tax based upon or related to income or receipts, the portion allocable to the Straddle Period ending on the Closing Date shall not suffer be deemed equal to the amount which would be payable if the relevant Straddle Period ended on the Closing Date); any diminution of indemnity rights otherwise available under this agreement for Losses Liability to the extent arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice 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 or use or misuse of products sold or from services performed by or on behalf of any Seller Party or any other Person prior to the Closing Date; any Liability of the Seller Parties for any Action to the extent arising out of or related to claims made under such guarantee and tenders (i) asserted prior to the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise Closing Date against any Seller Party or against or in respect of any claims made under such guarantee. With respect Acquired Assets or (ii) the basis of which shall have arisen prior to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guaranteesClosing Date; provided, however, that nothing except as expressly provided in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group Agreement with respect to such claimAssumed Contracts, except any Liability of the Seller Parties to the extent resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by this Agreement; any Liability of a Seller Party or its Affiliates that arises out of or relates to any Excluded Asset; any Liability of a Seller Party or the New Fluor Group shall use commercially reasonable efforts Business to cause any Seller Party's Affiliates arising prior to the prompt release Closing Date; any Liability of a Seller Party for the payment of fees or expenses of any lien imposed on any assets broker or finder in connection with the origin, negotiation or execution of the Xxxxxx Group this Agreement or in connection with any such guarantee. The transaction contemplated hereby; and any Liability of a Seller Party arising out of or relating to the ownership or operation of the Business or the Acquired Assets prior to the Closing Date, including outstanding (immediately prior to the Closing) debts or obligations set forth in this Section 5.09 shall be in addition owed to third parties under any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementAssumed Contracts.

Retained Liabilities. Without limiting Except for the liabilities that Buyer is expressly agreeing to assume pursuant to Section 1.4, Buyer is not assuming and shall have no obligation to pay, perform or discharge any other -------------------- provision debts, liabilities, claims and obligations relating to Sellers' conduct of this Agreementthe Business prior to the Closing Date, including without limitation: (a) any payment obligations from and after the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Closing Date to Asset Seller Employees who do not become Transferred Employees, including severance arrangements, and the retention bonuses payable to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities Asset Seller's employees set forth in Schedule 5.09. The foregoing notwithstanding4.19(b) and any obligation to the Companies' employees resulting from any measures taken prior to the Closing Date, including as a result of any social plans or redundancies, (b) any liability or obligation of Asset Seller for taxes of any kind (and any penalties or interest due on account thereof), including any tax liability and other related costs arising from the transfer by any of the Companies of any Excluded Asset to the Seller or any affiliated or parent company of the Seller; (c) any liability or obligation with respect to any guarantees issued by Parent that are listed suits, actions, claims or proceedings pending or threatened on Schedule 5.09 the Closing Date or which results from action taken prior to the Closing Date; (d) any long term debt, including short-term portions thereof, and intercompany liabilities; and (e) any other guarantees by Parent of any obligations arising from liabilities related to employees, former employees, or Employee Plans (as defined in Section 4.19), including without limitation liabilities under the Fluor Business that survive Xxxx-Xxxxx Retirement & Savings Plan through the DistributionClosing Date, except as expressly provided in Section 6.5 (collectively, the "Retained Liabilities"). Asset Seller shall retain and shall timely pay, perform and discharge the Retained Liabilities. Furthermore, Buyer is not assuming and shall have no obligation to pay, perform or discharge any debts, costs, liabilities, expenses or obligations of the Xxxxxx Group under this Section 5.09 with respect relating to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) any value added taxes or similar taxes currently owed or incurred by the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders Companies on or prior to the defense of such claims to New Fluor in accordance with Closing Date (the provisions of Section 4.01 and 4.02 hereof and "VAT Taxes") or (b) the Xxxxxx Group complies with its any debts, costs, liabilities, expenses or obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect relating to the guarantees listed Sellers or the Companies' employee stock options or similar equity instruments outstanding or proposed or committed to be issued on Schedule 5.09 and any other guarantees by Fluor Corporation that relate or prior to the Fluor BusinessClosing Date (the "Option Obligations"). Asset Seller shall assume, retain and pay all debts, costs, liabilities, expenses or obligations related to the New Fluor Group VAT Taxes or the Option Obligations and the VAT Taxes and Option Obligations shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member be part of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementRetained Liabilities.

Retained Liabilities. Without limiting any other -------------------- provision of this AgreementExcept for the Assumed Liabilities, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any Liabilities of Seller (including, without limitation, all Players Club Liabilities relating to members of Seller's "slot club" who shall not apply have earned any additional credits in such slot club after the date which is six months prior to the extent that Closing Date, or any other liabilities related to the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, Business) of any matterkind, activity character or omission resulting description whatsoever, including those Liabilities listed in Losses due SECTION 1.02(b) OF THE DISCLOSURE SCHEDULE (the "RETAINED LIABILITIES") and all Liabilities and obligations under collective bargaining agreements, whether oral or written, to breach which Seller is a party; any decision or order of the obligations NLRB, any judicial decision or order enforcing a decision or order of the NLRB or any decision or order of an NLRB Administrative Law Judge, whether or not any such decision or order specifies a remedy, and liabilities regardless of what type of remedy ordered, including but not limited to provisional, injunctive, or final remedies of any kind; any agreement in settlement of any unfair labor practice charge or employee grievance, whether formal or informal, and whether with or without the approval of an NLRB Administrative Law Judge, NLRB General Counsel, any NLRB Regional Director or other NLRB representative or agent, the NLRB, or a court of law, and regardless of the charging party's participation or non-participation; any NLRB advisory opinion or declaratory order, including, but not limited to, opinions or orders pertaining to jurisdictional issues; any subpoena issued to Seller by or with the authorization of an NLRB Regional Director, NLRB Administrative Law Judge, the NLRB, or a court of law. The Retained Liabilities, including, without limitation, those set forth in Schedule 5.09above, apply specifically but not exclusively to the following NLRB case numbers: 28-CA-12228; 28-CA-12677; 28-CA-11679; 28-CA-11707; 28-CA-11719; 28-CA-11772; 28-CA-11826; 28-CA-11874; 28-CA-11992; 28-CA-11995; 28-CA-12021; 28-CA-12097; 28-CA-13321; 28-CA-13367-2; 28-CA-13727; 28-CA-14032; 28-CA-14122; 28-CA-14304; 28-CA-14375; 28-CA-14489; 28-CA-14758; 28-CA-14820; 28-CA-15074; 28-CA-15074-2; 28-CA-15235; 28-CA-15743-2; 28-CA-15743-3; 28-CA-16255; 28-CA-16313; 28-CA-16313-2; 28-CA-16313-3; and 28-CA-16440. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfiedSeller shall, and the Xxxxxx Indemnified Parties Parent shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Businesscause Seller to, the New Fluor Group shall discharge in a timely manner or shall make adequate provision for all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking Retained Liabilities, provided that Seller shall have the ability to contest, in good faith, any action or refraining from taking any action such claim of liability asserted in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered respect thereof by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementPerson other than Purchaser and its Affiliates.

Retained Liabilities. Without limiting At Closing, the Seller shall retain all Liabilities for, and the Buyer shall not have any other -------------------- provision of this Liability concerning, (i) any Liabilities under the Contracts, the Lake Concession Agreement, the Xxxxxx Group acknowledges Mansfield Lease Agreement, Intangible Personal Property, Water Rights, Effluent Discharge Rights, Licenses and Permits and Permitted Exceptions which have arisen or accrued and pertain to the obligations period prior to the Closing Date, including, without limitation, the Liability for the payment of any amounts due and liabilities set forth on Schedule 5.09payable or accrued but not yet due or payable prior to the Closing Date under the Contracts, and Licenses and Permits, except to the extent applicablethe Buyer receives a credit for such Liabilities under Section 10.6 (in which case Buyer would assume such Liability or Liabilities, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply only to the extent that of such credit), (ii) the Xxxxxx Indemnified Parties are payment of all Taxes and ad valorem or property taxes due and payable or accrued but not yet paid prior to the causeClosing Date, either directly except to the extent the Buyer has received a credit for such Taxes and ad valorem or indirectlyproperty taxes under Section 10.6 (in which case Buyer would assume such Liability or Liabilities, only to the extent of such credit), (iii) any matter, activity claim for personal injury to a Person or omission resulting in Losses due to breach a Person’s property (but not to the Property) which is based on any event which occurred at the Real Property prior to the Closing Date and (iv) Liabilities related to breaches of the obligations representations and liabilities set forth warranties contained in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 Sections 7.1 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution7.2 (collectively, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees“Retained Liabilities”); provided, however, that nothing with the express exception of clause (iv) above, the Retained Liabilities shall not in this Section 5.09 shall impose any obligation manner include matters related to the physical, environmental or liability whatsoever on the New Fluor Group to any member legal compliance of the Xxxxxx Group for taking any action Property. Seller hereby indemnifies, saves, pays, insures and holds Buyer harmless from and against all Liabilities (including, but not limited to, reasonable attorneys’ fees and expenses) asserted against or refraining from taking any action in the defense, settlement or other handling of any claim against any member incurred by Buyer and arising out of the New Fluor Group covered by any such guarantee that Retained Liabilities, which shall include, without limitation the New Fluor Group determines in good faith to be appropriate in protecting pending sales tax audit disclosed on Schedule 7.1(j) (the interests of “Seller’s Indemnity”); provided, however, the New Fluor Group Seller’s Indemnity with respect to such claim, except that clause (iv) above shall be limited by the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed threshold and limits on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations liability set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify 7.3 and the Xxxxxx Group Seller’s Indemnity with respect to Losses related to such guarantees pursuant to clause (iv) above for representations and warranties under Section 3.01(e) 7.2 shall be the obligation of this AgreementEAGL Parent and not Seller.

Retained Liabilities. Without limiting The 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, including, but not limited to: any other -------------------- provision Liability arising out of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and or relating to products of Seller to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything manufactured or sold prior to the contrary contained hereinEffective Time; any Liability under any Seller Contract assumed by Buyer that arises after the Effective Time but that arises out of or relates to any Breach that occurred prior to the Effective Time; any Liability for Taxes, including (A) any Taxes arising as a result of Seller's operation of its business or ownership of the New Fluor indemnity provisions described in Section 3.01 Assets prior to the Effective Time, (B) any Taxes that will arise as a result of the sale of the Assets pursuant to this Agreement shall and (C) any deferred Taxes of any nature; any Liability under any Contract not apply assumed by Buyer including any Liability arising out of or relating to Seller's credit facilities or any security interest related thereto; any Environmental, Health and Safety Liabilities arising out of or relating to the extent that operation of Seller's business or Seller's leasing, ownership or operation of real property; any Liability under the Xxxxxx Indemnified Parties are the causeEmployee Plans or relating to payroll, either directly vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or indirectlyprofit-sharing plans, health care plans or benefits or any other employee plans or benefits of any matterkind for Seller's employees or former employees or both; any Liability under any employment, activity severance, retention or omission resulting in Losses due termination agreement with any employee of Seller or any of its Related Persons; any Liability arising out of or relating to breach any employee grievance whether or not the affected employees are hired by Buyer; any Liability of Seller to any Shareholder or Related Person of Seller or any Shareholder; any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Seller; any Liability to distribute to any of Seller's shareholders or otherwise apply all or any part of the obligations consideration received hereunder; any Liability arising out of any Proceeding pending as of the Effective Time; any Liability arising out of any Proceeding commenced after the Effective Time and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect arising out of or relating to any guarantees issued by Parent that are listed on Schedule 5.09 and occurrence or event happening prior to the Effective Time; any Liability arising out of or resulting from Seller's compliance or noncompliance with any Legal Requirement or Order of any Governmental Body; any Liability of Seller under this Agreement or any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group document executed in connection with the Contemplated Transactions; and any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation Liability of New Fluor to indemnify Seller based upon Seller's acts or omissions occurring after the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementEffective Time.

Retained Liabilities. Without limiting any other Except for the Assumed Liabilities, -------------------- provision of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any Liabilities of Seller (including, without limitation, all Players Club Liabilities relating to members of Seller's "slot club" who shall not apply have earned any additional credits in such slot club after the date which is six months prior to the extent that Closing Date, or any other liabilities related to the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, Business) of any matterkind, activity character or omission resulting description whatsoever, including those Liabilities listed in Losses due to breach Section 1.02(b) of the ---------------------- Disclosure Schedule (the "Retained Liabilities") and all Liabilities and ------------------- -------------------- obligations under collective bargaining agreements, whether oral or written, to which Seller is a party; any decision or order of the NLRB, any judicial decision or order enforcing a decision or order of the NLRB or any decision or order of an NLRB Administrative Law Judge, whether or not any such decision or order specifies a remedy, and liabilities regardless of what type of remedy ordered, including but not limited to provisional, injunctive, or final remedies of any kind; any agreement in settlement of any unfair labor practice charge or employee grievance, whether formal or informal, and whether with or without the approval of an NLRB Administrative Law Judge, NLRB General Counsel, any NLRB Regional Director or other NLRB representative or agent, the NLRB, or a court of law, and regardless of the charging party's participation or non-participation; any NLRB advisory opinion or declaratory order, including, but not limited to, opinions or orders pertaining to jurisdictional issues; any subpoena issued to Seller by or with the authorization of an NLRB Regional Director, NLRB Administrative Law Judge, the NLRB, or a court of law. The Retained Liabilities, including, without limitation, those set forth in Schedule 5.09above, apply specifically but not exclusively to the following NLRB case numbers: 28-CA-12228; 28-CA-12677; 28-CA-11679; 28-CA-11707; 28-CA-11719; 28-CA-11772; 28-CA-11826; 28-CA-11874; 28-CA-11992; 28-CA-11995; 28-CA-12021; 28-CA-12097; 28-CA-13321; 28-CA-13367-2; 28-CA-13727; 28-CA-14032; 28-CA-14122; 28-CA-14304; 28-CA-14375; 28-CA-14489; 28-CA-14758; 28-CA-14820; 28-CA-15074; 28-CA-15074-2; 28-CA-15235; 28-CA-15743-2; 28-CA-15743-3; 28-CA-16255; 28-CA-16313; 28-CA-16313-2; 28-CA-16313-3; and 28-CA-16440. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfiedSeller shall, and the Xxxxxx Indemnified Parties Parent shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Businesscause Seller to, the New Fluor Group shall discharge in a timely manner or shall make adequate provision for all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking Retained Liabilities, provided that Seller shall have the ability to contest, in good faith, any action or refraining from taking any action such claim of liability asserted in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered respect thereof by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementPerson other than Purchaser and its Affiliates.

Retained Liabilities. Without limiting Notwithstanding anything in this Agreement to the contrary, Purchaser shall not assume or be deemed to have assumed, and shall have no liability or obligation with respect thereto, any other -------------------- provision liabilities of the Company (collectively, “Retained Liabilities”) including without limitation the following: (i) liabilities in respect of employment or services performed on or prior to the Closing, including, without limitation, liabilities in respect of agreements regarding compensation, severance, stock options and other benefits; (ii) product liability claims to the extent based on a defective design for Products designed by Seller and sold prior to the Closing Date except as expressly set forth in Section 2.1.4; (iii) existing litigation for which a claim has been made to or threatened in writing against Seller on or before the Closing Date; (iv) all Tax liabilities of Seller for all periods (but excluding any Tax liabilities allocated to Purchaser pursuant to Section 10.3 of this Agreement); (v) any liability or obligation of Seller for administrative fees and expenses, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09including, and to the extent applicablewithout limitation, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in any claims arising under Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach 503(b) of the obligations Bankruptcy Code; (vi) any liability or obligation of Seller for transaction fees and liabilities set forth in Schedule 5.09. The foregoing notwithstandingexpenses and fees and expenses payable to lenders, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 brokers, financial advisors, legal counsel, accountants and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group professionals in connection with any such guarantee. The obligations set forth in this Agreement; (vii) all Debt (as defined by Section 5.09 shall be in addition 101(12) of the Bankruptcy Code) owed by Seller to any party; (viii) all Claims, except for Assumed Liabilities; (ix) all liabilities to employees of Seller who are not Transferred Employees as defined in Section 3.1.3, (x) any amounts payable to Wireless Matrix USA, Inc. (“Wireless Matrix”) in connection with, and pursuant to, the termination of the Asset Sale and Purchase Agreement dated June 6, 2006 (the “Wireless Matrix Agreement”), between Wireless Matrix and Seller, or (xi) any liability or obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees not expressly assumed pursuant to Section 3.01(e) of this Agreement2.1 hereof.

Retained Liabilities. Neither the Purchaser nor any Affiliate of the Purchaser shall assume, or otherwise be responsible for any and all Liabilities of the Seller Parties and their Affiliates not expressly assumed as an Assumed Liability in Section 2.3, whether liquidated or unliquidated, or known or unknown, whether arising out of occurrences prior to, at or after the Closing Date. Without limiting any other -------------------- provision limitation of the foregoing provisions of this AgreementSection 2.4, it is expressly agreed and understood that neither the Xxxxxx Group acknowledges Purchaser nor any Affiliate of the obligations and Purchaser shall assume any of the following liabilities set forth on Schedule 5.09, and of the Seller Parties: any Liability of the Seller Parties to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described or in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, respect of any matter, activity employees or omission resulting in Losses due to breach former employees of the obligations Seller Parties or their Affiliates, including, (i) any claim or demand of a current or former employee relating to or arising as a result of employment, termination by the Seller Parties thereof, or an employment agreement, whether or not written, between a Seller Party or its Affiliates and liabilities set forth in Schedule 5.09. The foregoing notwithstandingany Person, including, for this purpose, with respect to any guarantees issued Person claiming entitlements or benefits on the basis of a claimed employer-employee relationship between a Seller Party and such Person, (ii) any Liability under any employee plan at any time maintained, contributed to or required to be contributed to by Parent that are listed on Schedule 5.09 or with respect to a Seller Party or its Affiliates or under which a Seller Party or its Affiliates may incur Liability, or any contributions, benefits or Liabilities therefor, or any Liability with respect to a Seller Party's or its Affiliates' withdrawal or partial withdrawal from or termination of any employee plan, (iii) any Liability under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") arising as a result of any act or omission by Seller Parties, (iv) any Liability of a Seller Party or its Affiliates under the WARN Act, and any other guarantees similar state, local U.S. or non-U.S. law or regulation, (v) any Liability of a Seller Party or its Affiliates for Severance, accrued vacation and/or paid time and/or mandatory or customary payment and/or benefit and/or entitlement for employees of a Seller Party 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 20 CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. regulation, which shall have been asserted prior to the Closing Date or is based on acts or omissions by Parent any Seller Party which occurred prior to the Closing Date; except as provided in Section 2.9, any Liability of a Seller Party or its Affiliates in respect of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 Tax with respect to any Tax period (including any liability for the Taxes of any other Person (i) under Treasury Regulation Section 1.1502- 6 (or any similar provision of state, local, or foreign law), (ii) as a transferee or successor, (iii) by contract or otherwise (iv) and any Liability for Tax attributable to the Acquired Assets or the Business with respect to any Pre-Closing Tax Period, including any Liability for the breach of the terms of any "approved enterprise" programs received by the Company which may result from the transactions contemplated by this Agreement (such guarantee Liability for Taxes for the portion of any Straddle Period ending on the Closing Date shall be determined as follows: (A) in the case of any Taxes other than Taxes based upon or related to income or receipts, the portion allocable to the Straddle Period ending on the Closing Date shall be deemed fully satisfiedto be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending on the Closing Date and the Xxxxxx Indemnified Parties denominator of which is the number of days in the entire Straddle Period; and (B) in the case of any Tax based upon or related to income or receipts, the portion allocable to the Straddle Period ending on the Closing Date shall not suffer be deemed equal to the amount which would be payable if the relevant Straddle Period ended on the Closing Date); any diminution of indemnity rights otherwise available under this agreement for Losses Liability to the extent arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice 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 or use or misuse of products sold or from services performed by or on behalf of any Seller Party or any other Person prior to the Closing Date; any Liability of the Seller Parties for any Action to the extent arising out of or related to claims made under such guarantee and tenders (i) asserted prior to the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise Closing Date against any Seller Party or against or in respect of any claims made under such guarantee. With respect Acquired Assets or (ii) the basis of which shall have arisen prior to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guaranteesClosing Date; provided, however, that nothing except as expressly provided in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group Agreement with respect to such claimAssumed Contracts, except any Liability of the Seller Parties to the extent resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by this Agreement; any Liability of a Seller Party or its Affiliates that arises out of or relates to any Excluded Asset; any Liability of a Seller Party or the New Fluor Group shall use commercially reasonable efforts Business to cause any Seller Party's Affiliates arising prior to the prompt release Closing Date; any Liability of a Seller Party for the payment of fees or expenses of any lien imposed on any assets broker or finder in connection with the origin, negotiation or execution of the Xxxxxx Group this Agreement or in connection with any such guarantee. The transaction contemplated hereby; and any Liability of a Seller Party arising out of or relating to the ownership or operation of the Business or the Acquired Assets prior to the Closing Date, including outstanding (immediately prior to the Closing) debts or obligations set forth in this Section 5.09 shall be in addition owed to third parties under any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementAssumed Contracts.

Retained Liabilities. Without limiting any other -------------------- provision All Liabilities of this Agreementthe Seller Group or otherwise relating to the Acquired Assets or the Business that are not Assumed Liabilities, including all Liabilities arising out of, relating to or otherwise in respect of the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Excluded Assets, and all other Liabilities to the extent applicablearising out of, relating to or otherwise in respect of the Xxxxxx ownership, management, control, operation or conduct of the Business or the Acquired Assets at or prior to the Closing, are not part of the Transaction, will be retained by the Seller Group agrees to honor and properly discharge all such obligations and liabilities will remain the sole responsibility of the Seller Group following the Distribution Date. Notwithstanding anything Closing, including the Liabilities described further on Section 2.4 of the Disclosure Schedules (the “Retained Liabilities”), including, for the avoidance of doubt, Excluded Taxes, any Indebtedness or Liabilities, which are not Assumed Liabilities, incurred by the Seller Group arising out of the facts, circumstances, activities, events or conditions first occurring or first existing on or relating to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply Acquired Assets or Business incurred prior to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstandingClosing or, with respect to the Acquired Assets or Business, any guarantees issued by Parent that are listed on Schedule 5.09 Liabilities arising out of, resulting from or relating to any salary, commission, bonus or incentive compensation (or other compensation to officers or employees), any environmental, health or safety matter, including any Liabilities arising under Environmental Laws, fines and penalties for violations of Environmental Law, off-site waste disposal Liabilities and any other guarantees by Parent Release of, contamination by, or exposure of any obligations arising from Person to, Hazardous Substances, where the Fluor Business that survive circumstance, event, fact, activity or condition giving rise to such Liabilities first existed or first occurred on or prior to the DistributionClosing Date, irrespective of whether such Liability attaches to the obligations Seller Group or the Buyer in the first instance. The Seller hereby covenants and agrees to discharge, or to cause any Person of the Xxxxxx Seller Group under this Section 5.09 to discharge, or make other provision for, all Retained Liabilities with respect no Liability to any such guarantee shall be deemed fully satisfied, the Buyer and the Xxxxxx Indemnified Parties Buyer shall not suffer assume and shall not otherwise be obligated to pay, perform or otherwise discharge any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation Retained Liability or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreementamount due thereunder.

Retained Liabilities. Without limiting Buyer shall not assume or be liable for, unless explicitly included in the Assumed Liabilities or provided for under the Lease/License Agreement (defined below), any obligation or liability arising from the pre-Closing operation of the Business or the Assets or any other -------------------- provision liability or obligation of Seller, including without limitation the following: (i) any liability or obligation of Seller arising out of or relating to any contract, contract of employment whether written or otherwise, financing agreement, lease agreement, or instrument; (ii) any liability or obligation of Seller owing to any employee of Seller (whether or not hired by Buyer upon Closing) or arising out of or relating to any employee benefit plan or otherwise relating to employment (and Seller shall, for purposes of this Agreement, the Xxxxxx Group acknowledges the obligations pay all accrued benefits, severance pay and liabilities set forth on Schedule 5.09other amounts owing to any employees, as if such employees had been terminated as of January 31, 1999, whether or not such amounts are then due, and whether or not such employees are hired by Buyer upon Closing); (iii) any claims asserted against the Business or any of the Assets relating to any event (whether act or omission) prior to the extent applicableClosing Date, including without limitation, the Xxxxxx Group agrees to honor and properly discharge payment of all such obligations and liabilities following taxes; (iv) the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, balance of any matterobligations under the Siemens Contract (other than the portion thereof explicitly assumed by Buyer pursuant to Section 1.3(a)(iii)), activity including without limitation any obligation to purchase equipment and any obligation thereunder arising from any breach or omission resulting in Losses due to breach default thereof; or (v) any other obligation, liability, debt, or commitment of the obligations and liabilities set forth in Schedule 5.09Seller not explicitly assumed by Buyer hereunder. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 1.3(b) shall be in addition referred to herein collectively as the "Retained Liabilities." Seller retains and shall hereafter pay, satisfy, discharge, perform and fulfill all Retained Liabilities as they become due, without any obligation of New Fluor charge or cost to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementBuyer.

Retained Liabilities. Without limiting 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 -------------------- provision than Purchaser and its Affiliates, so long as such contest does not result in a Lien upon any of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and Assets): except to the extent applicableany such liability is reflected on the Closing Date Balance Sheet as a current liability of the Business, any loss or liability of the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything Company of any nature or description, whether liquidated or contingent, to the contrary contained hereinextent (a) resulting from events or conditions which occurred or existed prior to the Transfer Time, or (b) arising out of or relating to the New Fluor indemnity provisions described Excluded Assets (including those items identified as Retained Liabilities in Section 3.01 1.08); any loss or liability relating to current or former employees of this Agreement shall 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; all Liabilities with respect to gaming chips and tokens issued by the Company (but not apply progressive meters), except as provided otherwise herein; 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; 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 Xxxxxx Indemnified Parties are accrual for such payables and expenses has been properly reflected on the causeClosing Balance Sheet, either directly and other than to the extent arising following the Transfer Time under Contracts that constitute Assets); any Liability, whether currently in existence or indirectlyarising hereafter, owed by the Company to any of its Affiliates; <page>all Liabilities related to any matter, activity fines or omission resulting in Losses due to breach of penalties imposed against the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, Company (or with respect to the Business or any guarantees issued Asset) by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the DistributionGovernmental or Regulatory Authority (including, without limitation, the obligations Commission) prior to the Transfer Time; and all other Liabilities of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and Company other than the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementAssumed Liabilities.

Retained Liabilities. Without limiting The term “Retained Liabilities” shall mean all liabilities of the Seller not expressly assumed by the Buyer and shall include, but not be limited to, the following: (i) any other -------------------- provision liability or obligation of Seller in connection with this Agreement or the Transactions, including, without limitation, attorneys’, accountants’, investment bankers’ and consultants’ fees and expenses pertaining to the performance by Seller of its or his respective obligations hereunder, (ii) except as provided in Section 8.4 hereof, any liability or obligation of Seller for Taxes, whether relating to periods before or after the Closing Date, or whether incurred by the Seller in connection with this Agreement, the Xxxxxx Group acknowledges Transactions or the Business, (iii) any liability or obligation of Seller under any guarantee or any agreement to provide indemnification to any other Person, (iv) any liability or obligation of Seller for management or executive bonuses or arising from or relating to any Employment-Related Agreement, (v) any liability or obligation to any shareholder or former shareholder of the Seller, (vi) indebtedness and all other obligations and liabilities set forth on Schedule 5.09of Seller to any bank or other lender (“Bank Debt”), and (vii) any liability or obligation arising from acts or omissions of Seller, directors, shareholders, representatives, sales agents or employees, except to the extent applicablesuch liability or obligation is an Assumed Liability, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein(viii) any liability or obligation for services rendered, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply except to the extent that the Xxxxxx Indemnified Parties are the causesuch liability or obligation is an Assumed Liability, either directly (ix) any liability or indirectly, obligation of any matter, activity Seller under or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and lease, contract, arrangement or commitment, except to the extent such liability or obligation is an Assumed Liability, (x) any other guarantees by Parent liability or obligation of Seller arising as a result of or out of any obligations arising from the Fluor Business that survive the Distributionclaim, the obligations of the Xxxxxx Group under this Section 5.09 with respect any legal or equitable action, proceeding or investigation pertaining to or relating in any such guarantee shall be deemed fully satisfiedway to Seller initiated at any time, and the Xxxxxx Indemnified Parties shall whether or not suffer described in any diminution of indemnity rights otherwise available under this agreement Schedule hereto, (xi) any liability or obligation to pay for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims products, goods, raw materials or services delivered or provided to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect Seller, except to the guarantees listed on Schedule 5.09 and extent such liability or obligation is an Assumed Liability, or (xii) any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim liability or obligation of Seller arising out of or resulting from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection non-compliance with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementEnvironmental Protection Laws.

Retained Liabilities. Without limiting 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: (i) any other -------------------- provision Liability arising out of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and or relating to products of Seller to the extent applicablemanufactured, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything sold, or installed prior to the contrary contained hereinEffective Time; (ii) any Liability under any Contract assumed by Buyer pursuant to Section 2.4(a) that arises after the Effective Time but that arises out of or relates to any Breach that occurred prior to the Effective Time; (iii) any Liability for Taxes incurred or relating to periods prior to the Effective Time, including any Taxes arising as a result of Seller's operation of its business or ownership of the New Fluor indemnity provisions described in Assets prior to the Effective Time, and any Taxes that will arise as a result of the sale of the Assets pursuant to this Agreement; (iv) any Liability under any Contract not assumed by Buyer under Section 3.01 2.4(a), including any Liability arising out of or relating to Seller's credit facilities or any security interest related thereto; (v) any Environmental, Health and Safety Liabilities arising out of or relating to the operation of Seller's business or Seller's leasing, ownership or operation of real property; (vi) any Liability under the Employee Plans or relating to payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, or any other self-funded employee plans or benefits of any kind for Seller's employees or former employees or both; (vii) any Liability under any Seller employment, severance, retention or termination agreement with any employee of Seller or any of its Related Persons; (viii) any Liability arising out of or relating to any employee grievance whether or not the affected employees are hired by Buyer; (ix) any Liability of Seller to Shareholder or any Related Person of Seller or any Shareholder; (x) any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Seller; (xi) any Liability to distribute to Seller's Shareholder or otherwise apply all or any part of the consideration received hereunder; (xii) any Liability arising out of any Proceeding pending as of the Effective Time; (xiii) any Liability arising out of any Proceeding commenced after the Effective Time and arising out of or relating to any occurrence or event happening prior to the Effective Time; (xiv) any Liability arising out of or resulting from Seller's compliance or noncompliance with any Legal Requirement or Order of any Governmental Body; (xv) any Liability of Seller under this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group document executed in connection with the Contemplated Transactions; and (xvi) any such guaranteeLiability of Seller based upon Seller's acts or omissions occurring after the Effective Time. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreement.2.5

Retained Liabilities. Without limiting Except for the Assumed Liabilities, Buyer shall not assume any other -------------------- provision Liabilities of this AgreementSeller, whether arising before, on or after the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Closing Date, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following Liabilities (collectively the Distribution Date“Retained Liabilities”) shall remain the exclusive Liabilities of Seller. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstandingthis Agreement, the Assumed Liabilities shall not include, and the Retained Liabilities shall include, but not be limited to, any Liability for (i) that certain TD Bank Revolving Term Note, by and between TD Bank, N.A. and Seller, and the associated loan documents (collectively, the “TD Bank Loan”); (ii) Taxes arising as a result of or with respect to the Business or the Purchased Assets with respect to any taxable period or portion thereof ending prior to the Closing Date (for this purpose, with respect to Taxes, if any, reported on a periodic basis for a period that includes, but does not end on, the Closing Date, such Taxes shall be allocated ratably on a daily basis); (iii) any guarantees issued Taxes of Seller or its Members, including Transfer Taxes arising out of or in connection with the transactions contemplated by Parent that are listed on Schedule 5.09 and this Agreement; (iv) any other guarantees by Parent of any Liabilities or obligations arising from on or prior to the Fluor Business that survive the DistributionClosing Date in regards to social security contributions and benefits (whether regular or increased), the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, income Taxes and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any employee benefit plans now or formerly maintained or utilized by Seller (including without limitation any liabilities arising under any Benefit Plan, regardless of when such liability accrues) as well as any liabilities and obligations in regards to any self-employed contractor or leased employees/agency workers; (v) any Liabilities or obligations of Seller arising in respect of any of its employees’ prior status as independent contractors, including without limitation, any liability for Taxes or any payroll withholdings that could be claimed by Governmental Authorities in respect of such employees; (vi) any Liability or obligations of Seller arising out of its dispute and subsequent lawsuit with Uniter; (vii) any Liabilities or obligations respecting (x) Seller’s employees accrued vacation, paid time off, salary or bonus amount that are not Assumed Liabilities pursuant to Section 2.3(c), and (y) amounts derived from any stock option plan of Seller, employee benefit or workers compensation claims, health care continuation claims made under such guarantee. With COBRA or any other employee or contractor classification claims; (viii) any Liabilities or obligations that are not Assumed Liabilities pursuant to Section 2.3(c) in respect of the employees or contractors of Seller which arise out of events occurring on or prior to the guarantees listed Closing Date, including, but not limited to, Liabilities and obligations arising out of events occurring on Schedule 5.09 or prior to the Closing Date for violations of the Health and Safety at Work etc. Axx 0000, the Fair Labor Standards Act, the Occupational Safety and Health Act, 29 U.S.C. and any other guarantees by Fluor Corporation that relate health and safety or workers compensation legislation applicable to the Fluor Businesssuch employees, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; providedamendment thereto or regulation thereunder, howeverERISA, that nothing in this Section 5.09 shall impose or any obligation similar federal or liability whatsoever state Laws as well as those prohibiting discrimination on the New Fluor Group basis of race, sex or otherwise; (ix) all Liabilities of Seller to indemnify any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group Person in connection with the operation of the Business at or prior to Closing, whether arising out of contract, common law or otherwise; (x) all trade accounts payable of Seller to Third Parties in connection with the Business that remain unpaid as of the Closing Date and that are past due by more than thirty (30) days; and (xi) any such guaranteeLiabilities associated with any claims for benefits, workers’ compensation, severance, retention, termination or other payments due Transferred Employees in connection with, or as a result of, the consummation of the transactions contemplated by this Agreement. The obligations set forth in this Section 5.09 Seller shall be in addition to any obligation responsible for all of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementRetained Liabilities.

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, except for the Assumed Liabilities, Buyer does not assume and will not become responsible for any responsibility, obligation, duty, commitment, claim, contribution, cost, expense, damage or liability whatsoever, whether known or unknown, asserted or unasserted, accrued, absolute, contingent or otherwise, in law or equity (each, a “Liability” and collectively, “Liabilities”), of Seller (the Liabilities being retained by Seller are hereinafter collectively referred to as the “Retained Liabilities”). Without limiting the generality of the foregoing, and notwithstanding anything else in this Agreement to the contrary, the following are included among the Retained Liabilities and are not included among the Assumed Liabilities: (i) all Liabilities of Seller with respect to bank loans and other indebtedness for borrowed money; (ii) all Liabilities of Seller with respect to Taxes, whether arising before or after the Closing Date, except to the extent allocated to Buyer under Section 9.4; (iii) all Liabilities and obligations of Seller related to the Excluded Assets; (iv) fees payable to any broker, finder or other -------------------- provision Person acting in a similar capacity on behalf of Seller in connection with the transactions contemplated by this Agreement, including those of UBS Securities LLC and all other Seller Transaction Costs; (v) all Liabilities owed to any Affiliate of Seller; (vi) all Liabilities related to violations of Law by Seller prior to the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Closing; and, and (vii) except to the extent applicableincluded among the Accrued Expenses, all Liabilities, including liabilities under WARN or any similar state statute (whether arising prior to or in connection with the Xxxxxx Group agrees transactions contemplated by the Transaction Documents), related to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 Seller’s employment or engagement as an independent contractor or employee of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly or indirectlya third party, of any matter, activity Person (or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any guarantees issued by Parent that are listed on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense termination of such claims to New Fluor employment or engagement), including Liabilities for workers’ compensation claims, Liabilities arising at any time under any Plans and Liabilities for any compensation arising at any time under any employment, retention or guarantee agreement in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of effect at any claims made under such guarantee. With respect time prior to the guarantees listed on Schedule 5.09 Closing (including severance payments, change of control payments and any other guarantees by Fluor Corporation that relate to the Fluor Businesstransaction bonuses, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith incentive compensation to be appropriate in protecting due or owing after the interests Closing) or benefits owed, or proper characterization of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementPerson’s status.

Retained Liabilities. Without limiting All Liabilities other than the Assumed Liabilities shall remain Liabilities of Seller, and Purchaser shall not assume or pay any Liabilities (including any future legal actions) relating to or arising out of the ownership, conduct or operation of the Business or the Purchased Assets on or prior to the Closing Date or otherwise arising out of events occurring or conditions existing on or prior to the Closing Date, other -------------------- provision of this Agreementthan the Assumed Liabilities (the “Retained Liabilities”). Except as otherwise expressly provided in Section 1.3 above, the Xxxxxx Group acknowledges Purchaser does not assume or agree to be liable for any Retained Liabilities, including without limitation, (i) any Liability (whether direct or as a result of successor liability, transferee liability, joint and several liability or contractual liability) for Taxes related to the obligations Retained Assets, the Business or any Hired Employee (other than the Assumed Taxes) for periods (or portions thereof) ending on or before the Closing Date, (ii) any Liability (whether direct or as a result of successor liability, transferee liability, joint and liabilities set forth several liability or contractual liability) for income Taxes or Taxes that are unrelated to the Purchased Assets, the Business or any Hired Employee (including without limitation, any sales Taxes payable with respect to accounts receivable collected by Seller prior to the Closing and not being acquired by Purchaser hereunder), (iv) any Liability under any Contract not assumed by the Purchaser under Section 1.3(a) above, (v) any Liability (including certain notes and accounts payable) listed on Schedule 5.09, and 1.3 under the heading “Liabilities not to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the extent that the Xxxxxx Indemnified Parties are the cause, either directly be Assumed,” (vi) any Liability under or indirectly, of any matter, activity or omission resulting in Losses due to breach of the obligations and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect to any Employee Benefit Plan that is not a Transferred Plan, (vii) any Liability arising out of any claim, cause of action, proceeding or other litigation (whether brought against Seller or Purchaser before or after the Closing) arising, in whole or in part, from the conduct of the business of Seller prior to or after the Closing, (viii) any costs and expenses incurred by Seller incident to the negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein, (ix) any Liability of Seller to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement, (x) any Liability of Seller to its current or former shareholders, (in their capacities as such as contrasted to their capacity as employees) or to any other affiliate of Seller, (xi) any Liability of Seller to the extent relating to any Retained Asset, (xii) any indebtedness for borrowed money or for the deferred purchase price of property or services (but excluding accounts payable and accrued expenses incurred in the ordinary course of business), any obligations evidenced by notes, bonds, debentures or similar instruments, any capital lease obligations, any guarantees issued by Parent that are listed on Schedule 5.09 of such indebtedness or obligations, and any overdrafts or similar obligations, (xiii) any Liability of Seller for accrued dividends, interest and shareholder and employee bonuses, or (xiv) Seller’s obligations under this Agreement and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 with respect to any such guarantee shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise in respect of any claims made under such guarantee. With respect to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member of the Xxxxxx Group for taking any action or refraining from taking any action in the defense, settlement or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group delivered in connection with any such guaranteeherewith. The obligations set forth in this Section 5.09 Seller shall be in addition to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this Agreementremain solely responsible for all Retained Liabilities.

Retained Liabilities. Without limiting Notwithstanding any other -------------------- provision of this Agreementhereof, except for Assumed Liabilities, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09Sellers shall retain, and to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement Buyer shall not apply assume or agree to the extent that the Xxxxxx Indemnified Parties are the causepay, either directly perform, or indirectly, of discharge any matter, activity or omission resulting in Losses due to breach liabilities of the Sellers, including: (a) any liabilities or obligations and that any Seller owes to an Affiliate thereof; (b) any liabilities or obligations that secure or relate solely to Excluded Assets; (c) except as set forth in Schedule 5.09. The foregoing notwithstandingSection 3.2 below (concerning the Buyer's payment of ½ of the commission payable to Builders Advisor Group equal to 1.5% of the Purchase Price), any liabilities or obligations owed for any broker or similar services rendered in connection with the Contemplated Transactions; (d) any employee liabilities, employee benefits or severance payments that are not Assumed Liabilities; (e) any liabilities or obligations with respect to any guarantees issued by Parent Employee Plans (including COBRA) that are listed on Schedule 5.09 and not Assumed Liabilities; (f) any other guarantees by Parent of liabilities or obligations with respect to any obligations arising from Environmental Laws or Environmental Liabilities; provided, however, notwithstanding anything in this Agreement to the Fluor Business contrary, (1) Sellers reserve the right to assert any defense or right preserved for it in this Agreement or that survive the Distribution, the obligations of the Xxxxxx Group under this Section 5.09 they may otherwise raise against any third party with respect to any such guarantee potential liability and (2) Buyer shall be deemed fully satisfiedresponsible to the extent that Buyer caused, and aggravated or contributed to such liability after Closing; (g) any Seller expenses incurred in connection with this Agreement or the Xxxxxx Indemnified Parties shall not suffer Contemplated Transactions; (h) to the extent arising out of the operation of the Business prior to Closing (other than Assumed Warranty Claims), any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: liabilities or obligations with respect to any pending or Threatened action, inquiry, investigation, or Proceeding whether involving private parties or before any administrative or other Governmental Body; (ai) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor in accordance with the provisions of Section 4.01 and 4.02 hereof and (b) the Xxxxxx Group complies with its obligations under Article VI hereof that arise product liabilities, including without limitation, construction defects or other liabilities in respect of any claims made under such guarantee. With respect construction work performed prior to the guarantees listed Closing Date (other than Assumed Warranty Claims) on Schedule 5.09 and any other guarantees by Fluor Corporation that relate homes closed prior to or as of the Closing Date or development work performed prior to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing in this Section 5.09 shall impose any obligation or liability whatsoever Closing Date on the New Fluor Group to any member Finished Lots as of the Xxxxxx Group for taking Closing Date (such claims, "Warranty Claims"); (j) any action or refraining from taking any action in the defense, settlement trade accounts payable or other handling of any claim against any member of the New Fluor Group covered by any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group liabilities or obligations with respect to such claim, except that the New Fluor Group shall use commercially reasonable efforts homes closed prior to cause the prompt release of any lien imposed on any assets or as of the Xxxxxx Group in connection with Closing Date (k) except as other provided herein, any such guarantee. The obligations set forth in this Section 5.09 shall be in addition to Taxes; and (l) any liability or obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees other than those Assumed Liabilities which Buyer assumes pursuant to Section 3.01(e) 2.3 above (collectively, Retained Liabilities"), all of this Agreementwhich shall remain the sole responsibility of, and be discharged and performed as and when due by, each applicable Seller.

Retained Liabilities. Without limiting The Sellers assume and shall be responsible for all Adverse Consequences arising from (i) any other -------------------- provision medical, health or accident claims (including those claims arising from exposure to hazardous substances, whether or not such exposure has manifested in disease or disease process) of this Agreement, the Xxxxxx Group acknowledges the obligations and liabilities set forth on Schedule 5.09, and Company’s employees that are incurred to the extent applicable, the Xxxxxx Group agrees to honor and properly discharge all such obligations and liabilities following the Distribution Date. Notwithstanding anything to the contrary contained herein, the New Fluor indemnity provisions described in Section 3.01 of this Agreement shall not apply to the pro rata extent that the Xxxxxx Indemnified Parties are Liability is attributable to periods before the causeClosing Date and (ii) any arbitration, either directly mediation or indirectly, of any matter, activity litigation existing or omission resulting in Losses due to breach filed against the Company as of the obligations Closing Date (whether or not disclosed in the Schedules to this Agreement). (If the Shareholder Representative and liabilities set forth in Schedule 5.09. The foregoing notwithstanding, with respect Team are unable to any guarantees issued by Parent that are listed agree on Schedule 5.09 and any other guarantees by Parent of any obligations arising from the Fluor Business that survive the Distribution, the obligations an allocation of the Xxxxxx Group under this Section 5.09 with respect to any Liability referenced in clause (i) of the preceding sentence, such guarantee allocation shall be deemed fully satisfied, and the Xxxxxx Indemnified Parties shall not suffer any diminution of indemnity rights otherwise available under this agreement for Losses arising from such guarantee if: (a) the Xxxxxx Group provides New Fluor with prompt written notice of any claims made under such guarantee and tenders the defense of such claims to New Fluor determined by arbitration in accordance with the provisions of Section 4.01 and 4.02 hereof and (b10.17.) To the Xxxxxx Group complies with its obligations under Article VI hereof extent that arise policies of insurance of the Company in respect effect at the Closing Date afford coverage for any such Adverse Consequences, the Sellers may utilize the coverage of any such policy; however, the Sellers agree to indemnify and hold harmless Team and the Buyer from all such Adverse Consequences. To the extent that any policies of insurance of the Company in effect at the Closing Date are claims made policies, Team and the Buyer agree to maintain such policies for the remainder of their respective policy periods and to obtain tail coverage for the benefit of the Sellers for the maximum period available under such guaranteepolicies of insurance. With respect If the Buyer or Team fail to do so, they shall not be able to recover from the Sellers the amount of an Adverse Consequence that would have been covered by such insurance. Notwithstanding any provision that may appear to be to the guarantees listed on Schedule 5.09 and any other guarantees by Fluor Corporation that relate to the Fluor Business, the New Fluor Group shall discharge in a timely manner all obligations secured by such guarantees and use commercially reasonable efforts to prevent any claim from being made under such guarantees; provided, however, that nothing contrary in this Section 5.09 shall impose any obligation or liability whatsoever on the New Fluor Group to any member 6.8, as of the Xxxxxx Group for taking any action or refraining from taking any action in first business day after the defense, settlement or other handling of any claim against any member third annual anniversary of the New Fluor Group covered by Closing Date, Team and the Buyer shall make no new claims for Adverse Consequences and shall have no further right to recovery for such new claims for Adverse Consequences against the Sellers and the Escrowed Shares under this Section 6.8; however, Team and the Buyer shall be entitled to amend or supplement any such guarantee that the New Fluor Group determines in good faith to be appropriate in protecting the interests of the New Fluor Group with respect claims for Adverse Consequences existing prior to such claim, except that the New Fluor Group shall use commercially reasonable efforts to cause the prompt release of any lien imposed on any assets of the Xxxxxx Group in connection with any such guaranteedate. The obligations set forth in right to recovery for any claims for Adverse Consequences under this Section 5.09 6.8 shall be in addition limited to any obligation of New Fluor to indemnify the Xxxxxx Group with respect to Losses related to such guarantees pursuant to Section 3.01(e) of this AgreementMinimum Required Escrow Amount at the date the claim for Adverse Consequences is made.