Common use of Liabilities to be Assumed by Buyer Clause in Contracts

Liabilities to be Assumed by Buyer. Subject to the terms and conditions set forth herein, at Closing, Buyer shall assume, become obligated for, and hereby agrees to timely fulfill, perform, pay and discharge (or cause to be timely fulfilled, performed, paid or discharged), the following liabilities, and only the following liabilities, of Seller (collectively, the “Assumed Liabilities”): (a) other than the Liabilities expressly retained by Seller pursuant to Section 2.4(c) or Section 2.4(f), all Reclamation Liabilities and Environmental Liabilities of any kind or character whatsoever resulting from, relating to, arising out of, or incurred in connection with the Purchased Assets or Xxxxxx Creek Mine Operations, whether accruing or arising prior to, on or after the Closing Date, including (i) any fines or penalties and related costs for any violations of, or actions needed to achieve compliance with, Applicable Laws governing the Purchased Assets or Xxxxxx Creek Mine Operations (including the Purchased Permits), even though the conditions or events leading up to such actions exist or have occurred in whole or in part on or prior to the Closing Date, and (ii) following Seller’s complete satisfaction of all of its obligations related to a particular matter retained by Seller in Section 2.4(f), all subsequent or on-going cost to (A) operate, monitor or maintain or perform additional reclamation or remediation with respect to any site, facility or other improvement constructed, improved or otherwise controlled (provided such control is transferred to Buyer) by Seller in satisfaction of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f) and/or (B) comply with any Purchased Permit, order or Applicable Laws, in each case for (A) and (B), following the date on which Seller has completely satisfied all of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f); provided that, for purposes of clarification, during the period in which Seller’s responsibilities for Retained Liabilities pursuant to Section 2.4(f) are being conducted, Buyer assumes all permit compliance sampling, monitoring and reporting requirements for the Purchased Assets, including all monthly discharge monitoring reports, and agrees to allow Seller access to such reporting; (b) except for matters covered by Section 2.3(a) and other than the Liabilities expressly retained by Seller pursuant to Section 2.4(a), Section 2.4(f) or Section 2.4(g), all Liabilities under, relating to or arising from any of the Purchased Assets accruing or arising after the Closing Date; (c) other than the Liabilities expressly retained by Seller pursuant to Section 2.4(f) or Section 2.4(g) , all Liabilities for any violation of, or obligation under, any Applicable Law with respect to the Purchased Assets accruing or arising after the Closing Date; (d) except as provided otherwise in Section 8.4(a), all Liabilities for Taxes imposed on the Purchased Assets for periods after the Closing Date; (e) except for the Liabilities expressly retained by Seller pursuant to Section 2.4(a) or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, of the terms of any of the Coal Leases identified on Schedule 2.3(e) (the “Cotiga North/Association Leases”) accruing or arising on or after the Closing Date; (f) except for the Liabilities expressly retained by Seller pursuant to Section 2.4(a) or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, of the terms of the Restated Lease Agreement dated August 1, 2004, between Cotiga Development Company, Limited Partnership, and CONSOL of Kentucky Inc. (the “Cotiga South Lease”) accruing or arising after the Closing Date; and Buyer shall not assume any Liabilities of Seller other than the Assumed Liabilities.

Liabilities to be Assumed by Buyer. Subject to the terms and conditions set forth herein, at Closing, Buyer shall assume, become obligated for, and hereby agrees to timely fulfill, perform, pay and discharge (or cause to be timely fulfilled, performed, paid or discharged), the following liabilities, and only the following liabilities, of Seller (collectively, the “Assumed Liabilities”): (a) other than the Liabilities expressly retained by Seller pursuant to Section 2.4(c) or Section 2.4(f2.4(e), all Reclamation Liabilities and Environmental Liabilities of any kind or character whatsoever resulting from, relating to, arising out of, or incurred in connection with the Purchased Assets or Xxxxxx Creek Mine Fola Operations, whether accruing or arising prior to, on or after the Closing Date, including (i) any fines or penalties and related costs for any violations of, or actions needed to achieve compliance with, Applicable Laws governing the Purchased Assets or Xxxxxx Creek Mine Fola Operations (including the Purchased Permits), even though the conditions or events leading up to such actions exist or have occurred in whole or in part on or prior to the Closing Date, and (ii) following Seller’s complete satisfaction of all of its obligations related to a particular matter retained by Seller in Section 2.4(f2.4(e), all subsequent or on-going cost to (A) operate, monitor or maintain or perform additional reclamation or remediation with respect to any site, facility or other improvement constructed, improved or otherwise controlled (provided such control is transferred to Buyer) by Seller in satisfaction of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f2.4(e) and/or (B) comply with any Purchased Permit, order or Applicable Laws, in each case for (A) and (B), following the date on which Seller has completely satisfied all of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f2.4(e); provided that, for purposes of clarification, during the period in which Seller’s responsibilities for Retained Liabilities pursuant to Section 2.4(f2.4(e) are being conducted, Buyer assumes all permit compliance sampling, monitoring and reporting requirements for the Purchased Assets, including all monthly discharge monitoring reports, and agrees to allow Seller access to such reporting; (b) except for matters covered by Section 2.3(a) and other than the Liabilities expressly retained by Seller pursuant to Section 2.4(a), Section 2.4(f) 2.4(e), or Section 2.4(g2.4(f), all Liabilities under, relating to or arising from any of the Purchased Assets whether accruing or arising prior to, on or after the Closing Date, including all Liability for any Claims filed on or after the Closing Date resulting from, relating to, arising out of, or incurred in connection with the Purchased Assets whether accruing or arising prior to, on or after the Closing Date; (c) other than the Liabilities expressly retained by Seller pursuant to Section 2.4(f2.4(e) or Section 2.4(g) 2.4(f), all Liabilities for any violation of, or obligation under, any Applicable Law with respect to the Purchased Assets whether accruing or arising prior to, on or after the Closing Date;; and (d) except as provided otherwise in Section 8.4(a)8.4, all Liabilities for Taxes imposed on the Purchased Assets for periods after the Closing Date; (e) except for the Liabilities expressly retained by Seller pursuant to Section 2.4(a) or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, of the terms of any of the Coal Leases identified on Schedule 2.3(e) (the “Cotiga North/Association Leases”) accruing or arising on or after the Closing Date; (f) except for the Liabilities expressly retained by Seller pursuant to Section 2.4(a) or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, of the terms of the Restated Lease Agreement dated August 1, 2004, between Cotiga Development Company, Limited Partnership, and CONSOL of Kentucky Inc. (the “Cotiga South Lease”) accruing or arising after the Closing Date; and . Buyer shall not assume any Liabilities of Seller other than the Assumed Liabilities.

Liabilities to be Assumed by Buyer. Subject to At the terms and conditions set forth herein, at Closing, Buyer shall assume, become obligated for, Purchaser will assume and hereby agrees agree to timely fulfill, perform, pay perform and discharge (or cause to be timely fulfilled, performed, paid or discharged), the following liabilities, and only the following liabilities, of Seller (collectively, the “Assumed Liabilities”):following: (a) other than the Liabilities expressly retained by all liabilities and obligations of Seller pursuant which accrue and are required to Section 2.4(c) be paid or Section 2.4(f), all Reclamation Liabilities and Environmental Liabilities of any kind or character whatsoever resulting from, relating to, arising out of, or incurred in connection with the Purchased Assets or Xxxxxx Creek Mine Operations, whether accruing or arising prior to, on or performed after the Closing Date, including Date under the real property leases of Seller set forth on Schedule 1.4(a) hereto (i) any fines or penalties and related costs for any violations of, or actions needed to achieve compliance with, Applicable Laws governing the Purchased Assets or Xxxxxx Creek Mine Operations (including the Purchased Permits"Leases"), even though the conditions or events leading up to such actions exist or have occurred in whole or in part on or prior to the Closing Date, and (ii) following Seller’s complete satisfaction of all of its obligations related to a particular matter retained by Seller in Section 2.4(f), all subsequent or on-going cost to (A) operate, monitor or maintain or perform additional reclamation or remediation with respect to any site, facility or other improvement constructed, improved or otherwise controlled (provided such control is transferred to Buyer) by Seller in satisfaction of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f) and/or (B) comply with any Purchased Permit, order or Applicable Laws, in each case for (A) and (B), following the date on which Seller has completely satisfied all of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f); provided that, for purposes of clarification, during the period in which Seller’s responsibilities for Retained Liabilities pursuant to Section 2.4(f) are being conducted, Buyer assumes all permit compliance sampling, monitoring and reporting requirements for the Purchased Assets, including all monthly discharge monitoring reports, and agrees to allow Seller access to such reporting; (b) except for matters covered by Section 2.3(a) all liabilities and other than the Liabilities expressly retained by obligations of Seller pursuant which accrue and are required to Section 2.4(a), Section 2.4(f) be paid or Section 2.4(g), all Liabilities under, relating to or arising from any of the Purchased Assets accruing or arising performed after the Closing DateDate under the equipment leases of Seller set forth on Schedule 1.4(b) hereto (the "Equipment Leases"); (c) other than all of the Liabilities expressly retained by Seller pursuant to Section 2.4(f) or Section 2.4(g) , Customer Purchase Orders and all Liabilities for any violation of, or obligation under, any Applicable Law with respect to of the Purchased Assets accruing or arising after the Closing DatePrepaid Customer Orders; (d) except as provided otherwise in Section 8.4(a), all Liabilities for Taxes imposed on of the Purchased Assets for periods after the Closing DateSupplier Orders; (e) except for all accounts payable of Seller arising in the Liabilities expressly retained by Seller pursuant to Section 2.4(a) or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, ordinary course of the terms of any Reynxxxx xxxiness which have not been paid or discharged as of the Coal Leases identified on Schedule 2.3(e) time of the Closing (the “Cotiga North/Association Leases”) accruing or arising on or after the Closing Date;"Accounts Payable"); and (f) except for the Liabilities expressly retained by all liabilities and obligations of Seller pursuant which accrue and are required to Section 2.4(a) be paid or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, of the terms of the Restated Lease Agreement dated August 1, 2004, between Cotiga Development Company, Limited Partnership, and CONSOL of Kentucky Inc. (the “Cotiga South Lease”) accruing or arising performed after the Closing DateDate under the contracts set forth on Schedule 1.4(f) hereto (the "Assumed Contracts"); and Buyer provided, however, that Purchaser shall not assume or be responsible for any Liabilities such liability or obligation which arises from defaults or breaches thereunder by Seller. The liabilities and obligations of Seller other than to be assumed by Purchaser pursuant to this Section 1.4 are referred to herein as the "Assumed Liabilities."

Liabilities to be Assumed by Buyer. Subject to Upon the terms and conditions set forth herein, at Closingtransfer of the Acquired Assets on the Closing Date, Buyer shall assume, become obligated for, and hereby agrees to timely fulfill, perform, pay when due and discharge (or cause to be timely fulfilled, performed, paid or discharged), the following liabilities, and only the following liabilities, of Seller Liabilities (collectively, the “Assumed Liabilities”): (a) other than Liabilities arising out of the ownership of the Acquired Assets or the operation of the Business, but only to the extent that (i) subject to the proviso set forth below in this Section 2.3, such Liabilities expressly retained by Seller are reflected in and constitute Current Liabilities as of the Closing Date, or (ii) the event or state of facts giving rise to any such Liability (A) occurs on or after, or relates to periods beginning on or after, the Closing Date and (B) is not the result of any tort, infringement or violation of Law occurring prior to the Closing Date; (b) Liabilities arising under the Assumed Contracts, but only to the extent that (i) such Liabilities are reflected in and constitute Current Liabilities as of the Closing Date and, or (ii) the event or state of facts giving rise to such Liability (A) occurs on or after, or relates to periods beginning on or after, the Closing Date, and (B) is not the result of any breach of contract, breach of warranty or infringement occurring prior to the Closing Date; and (c) Liabilities related to commissions, but only to the extent that (i) such Liabilities are reflected in and constitute Current Liabilities as of the Closing Date or (ii) such Liabilities accrue or relate to sales made on or after the Closing Date in respect of the Assumed Contracts; provided, however, that in no event shall the Assumed Liabilities include (i) any Liabilities relating to any indebtedness of Seller, including, but not limited to, the convertible notes, (ii) any Liabilities to any Affiliate of Seller, (iii) any Taxes of Seller, (iv) any Taxes related to the Acquired Assets that were incurred in or are attributable (determined pursuant to Section 2.4(c8.11(b) in the case of a Straddle Period) to any taxable period (or portion thereof) ending on or before the Closing Date, (v) any Taxes of another Person for which Seller is liable, including, but not limited to Taxes for which Seller is liable by reason of Treasury Regulations Section 2.4(f1.1502-6 (or any comparable or similar provision of federal, state, local or foreign Law), all Reclamation being a transferee or successor, any contractual obligation or otherwise, (vi) any income, transfer, sales, use or other Taxes arising in connection with the consummation of the transactions contemplated by this Agreement (including any income Taxes arising as a result of the transfer by Seller to Buyer of the Acquired Assets), (vii) any Liabilities relating to any indemnity, warranty, infringement, breach of contract and Environmental tort claims relating to products and services sold prior to the Closing, (viii) Liabilities related to the service or termination of service of any kind employee, officer, director or character whatsoever resulting fromagent of Seller under or with respect to any plan, agreement, or arrangement providing compensation or benefits and currently or previously maintained by Seller or any entity treated as affiliated with Seller under Section 414 of the Code, (ix) Liabilities relating to, arising out of, or incurred in connection with the Purchased Assets Seller’s misclassification of employees as consultants or Xxxxxx Creek Mine Operations, whether accruing or arising prior to, on or after the Closing Date, including (i) any fines or penalties and related costs for any violations of, or actions needed to achieve compliance with, Applicable Laws governing the Purchased Assets or Xxxxxx Creek Mine Operations (including the Purchased Permits), even though the conditions or events leading up to such actions exist or have occurred in whole or in part on or prior to the Closing Dateindependent contractors, and (iix) following Seller’s complete satisfaction of all of its obligations related to a particular matter retained by Seller in Section 2.4(f), all subsequent or on-going cost to (A) operate, monitor or maintain or perform additional reclamation or remediation with respect to any site, facility or other improvement constructed, improved or otherwise controlled (provided such control is transferred to Buyer) by Seller in satisfaction of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f) and/or (B) comply with any Purchased Permit, order or Applicable Laws, in each case for (A) and (B), following the date on which Seller has completely satisfied all of its obligations related to the applicable matter expressly retained by Seller in Section 2.4(f); provided that, for purposes of clarification, during the period in which Seller’s responsibilities for Retained Liabilities Liability not explicitly assumed pursuant to this Section 2.4(f) are being conducted, Buyer assumes all permit compliance sampling, monitoring and reporting requirements for the Purchased Assets, including all monthly discharge monitoring reports, and agrees to allow Seller access to such reporting; (b) except for matters covered by 2.3. Section 2.3(a) and other than the Liabilities expressly retained by Seller pursuant to Section 2.4(a), Section 2.4(f) or Section 2.4(g), all Liabilities under, relating to or arising from any of the Purchased Assets accruing or arising after the Closing Date; (c) other than the Liabilities expressly retained by Seller pursuant to Section 2.4(f) or Section 2.4(g) , all Liabilities for any violation of, or obligation under, any Applicable Law with respect to the Purchased Assets accruing or arising after the Closing Date; (d) except as provided otherwise in Section 8.4(a), all Liabilities for Taxes imposed on the Purchased Assets for periods after the Closing Date; (e) except for the Liabilities expressly retained by Seller pursuant to Section 2.4(a) or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, of the terms of any of the Coal Leases identified on Schedule 2.3(e) (the “Cotiga North/Association Leases”) accruing or arising on or after the Closing Date; (f) except for the Liabilities expressly retained by Seller pursuant to Section 2.4(a) or Section 2.4(e), all Liability arising from or incurred in connection with any alleged breach, or an actual breach, of the terms of the Restated Lease Agreement dated August 1, 2004, between Cotiga Development Company, Limited Partnership, and CONSOL of Kentucky Inc. (the “Cotiga South Lease”) accruing or arising after the Closing Date; and Buyer 2.3 shall not assume any Liabilities of Seller other than the Assumed Liabilitiesprejudice Buyer’s applicable indemnification rights under this Agreement.