Common use of Retained Liabilities Clause in Contracts

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser shall not assume, and shall be deemed not to have assumed, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”).

Retained Liabilities. Notwithstanding anything in this Agreement Section 2.3(a), the following Liabilities of Seller arising out of or relating to the contrary, Purchaser operation of the Business or the Assets shall not assume, remain the sole responsibility of and shall be deemed not retained, paid, performed and discharged solely by Seller (the "Retained Liabilities"): (i) any Liability arising from or related to have assumedthe Excluded Assets; (ii) any Liability for Taxes of any Person within Seller's affiliated group, whether by reason of Treasury Regulation Section 1.1502-6, any Liabilities of Seller tax allocation or the Businesstax sharing agreements, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Planotherwise, including any accrued benefits Liability arising out of the current operation of the Business or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets with respect to any period (or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (dportion thereof) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers ending on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities Pre-Closing Taxes; (collectivelyiii) any Liability arising from or related to (A) to the extent that such Claim or Proceeding is brought within 10 years of the Closing Date, the “presence or Release of Hazardous Materials on, under, from or affecting the Transferred Real Property, to the extent such presence or Release existed or occurred prior to the Closing Date (it being understood that, after title to a parcel of Transferred Owned Real Property is transferred to Buyer, ownership of, and responsibility for maintaining, any asbestos-containing material present inside that Transferred Owned Real Property shall not be a Retained Liability and shall be assumed by Buyer); (B) the generation, transfer, storage, treatment, recycling, or disposal, prior to the Closing Date, of Hazardous Materials by or on behalf of Seller, RSI or the Business, or (C) the presence or Release of Hazardous Materials on, under, from or affecting any Excluded Assets (the foregoing (A) through (C) are collectively referred to herein as the "Retained Environmental Liabilities”"); (iv) to the extent that such claim is made or such Proceeding is brought within eighteen (18) months after the Closing Date, any Liability arising from or relating to any claim or Proceeding based on the actual or alleged infringement, misappropriation, or other violation of any Third Party intellectual property right, where such infringement, misappropriation, or violation occurred or allegedly occurred before the Closing Date, of any Third Party intellectual property right by (A) any product or service of the Business that was made, sold, offered for sale or provided by Seller in connection with the Business before the Closing Date or (B) any process or method to the extent used by Seller in connection with the Business before the Closing Date; (v) any Liability of Seller under this Agreement, any Ancillary Agreement or any other document executed in connection with the Contemplated Transactions; (vi) any Liability of Seller based upon Seller's acts or omissions occurring after the Effective Time; (vii) any Liability (A) under the Seller Savings Plan and the Seller Stock Plans, (B) for the Single Trigger Severance Liability, and (C) for Claims Incurred by Acquired Employees and their respective Dependents prior to Closing with respect to Active Welfare Benefits; (viii) any Liability arising from or related to indebtedness for borrowed money to Third Parties; and (ix) any Liability with respect to any intercompany payables.

Retained Liabilities. Notwithstanding anything in this Agreement Except for those liabilities expressly assumed by Buyer or any Affiliate designated by Buyer pursuant to the contrarySection 2.3, Purchaser Buyer shall not assumeassume and shall not be liable for, and Seller and Parent shall be deemed not retain and remain solely liable for and obligated to have assumeddischarge, all of the debts, contracts, agreements, commitments, obligations and other liabilities of any Liabilities nature whatsoever of Seller or the Businessand its direct and indirect subsidiaries, except as specifically provided in Section 2.3(a). All other liabilities, whether known or unknown, contingent accrued or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilitiesnot accrued, fixed or contingent, including but not limited to:without limitation, the following (the “Retained Liabilities”): (a) any and all liabilities incurred Any liability for breaches by Seller or assumed Parent on or prior to the Closing Date relating to current or former employees of Seller any contract or any Planother instrument, including contract or purchase order or any accrued benefits of the current liability for payments or former employees of Seller payable amounts due under any Contract or any other instrument, contract or purchase order on or after prior to the Closing Date except in each case as specifically provided in Schedule 2.3(a)Date; (b) any and all liabilities Any liability or potential liabilities in respect of pending obligation for Taxes attributable to or threatened litigation brought imposed upon Seller or Parent, or attributable to be brought in respect of events, circumstances or facts occurring prior to imposed upon the Closing, including any indemnification claims relating to this Agreement Purchased Assets or the TransactionsBusiness for any period (or portion thereof) through the Closing Date, including, without limitation, any Taxes attributable to or arising from the litigation identified on Schedule 4.21transactions contemplated by this Agreement; (c) Taxes attributable to the Assets Any liability or the operations obligation for or the income in respect of any loan, other indebtedness for money borrowed, or account payable of Seller or any Seller Group for of its direct or indirect subsidiaries, including any Pre-Closing Tax Period; andsuch liabilities owed to Affiliates of Seller; (d) Any and all claims (including product liability claims)or obligation arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time, counterclaims, offsets, defenses or causes of action to the extent relating to products manufactured by Seller any action or omission on or before prior to the Closing Date and shipped to customers by or on behalf of Seller, including, without limitation, any liability for infringement of intellectual property rights, breach of product warranty, injury or death caused by products, or violations of federal or state securities or other laws; (e) Any liability or obligation arising on or before prior to the Closing Date. As between Date out of any “employee benefit plan,” as such term is defined by the Employee Retirement Income Security Act of 1974 (“ERISA”) or other employee benefit plans; (f) Any liability or obligation for making payments of any kind (including as a result of the sale of Purchased Assets or as a result of the termination of employment by Seller of employees, or other claims arising out of the terms and Purchaserconditions of employment with Seller, it is understood that Seller shall be solely and exclusively liable with respect or for vacation or severance pay or otherwise) to all Liabilities employees of Seller or in respect of payroll taxes for employees of Seller, except as set forth on Schedule 2.4(f); (g) Any liability of Seller or Parent incurred in connection with the making or performance of this Agreement and the transactions contemplated hereby; (h) Any liability of Seller arising out of the violation of or failure to comply with any Environmental Regulations (as hereinafter defined) applicable to any aspect of the Business; and (i) Any costs or expenses of Seller or Parent incurred in connection with shutting down, whether disclosed or undiscloseddeinstalling and removing equipment not purchased by Buyer, whether known or unknown, whether fixed or contingent, other than and the Assumed Liabilities (collectively, the “Retained Liabilities”)costs associated with all contracts and agreements not assumed by Buyer.

Retained Liabilities. Notwithstanding anything any other provision of this Agreement, Purchaser is not assuming and will not be liable hereunder for any Liabilities of any Person other than Assumed Liabilities (such Liabilities, the “Retained Liabilities”) and nothing in this Agreement is intended to assign, transfer or otherwise impose Retained Liabilities on Purchaser as the contrary, Purchaser shall not assumenew Servicer under the Servicing Agreements. The Retained Liabilities will remain the sole responsibility of, and shall will be deemed not to have assumedpaid, any Liabilities of Seller or the Businessperformed and discharged by, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Without limiting the generality of the foregoing, Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited toinclude: (a) any and all liabilities incurred Claims and Liabilities related to the operation or assumed ownership of the Purchased Assets arising from, in connection with, or relating to any action, event, circumstance or condition occurring or existing on or prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a)Date; (b) all obligations under the Servicing Agreements or otherwise to repurchase any and all liabilities or potential liabilities in respect of pending or threatened litigation brought Receivables or to be brought in reimburse, indemnify or hold harmless any Person, or otherwise assume any Liability with respect of events, circumstances or facts occurring prior to any loss arising from Mortgage Loans related to the Closingorigination or sale of Receivables, including in the event of fraud on the part of any indemnification claims relating to this Agreement or obligor under a Mortgage Loan, and any Liabilities arising out of the Transactions, including, without limitation, the litigation identified on Schedule 4.21foregoing; (c) Taxes attributable Liabilities arising out of or relating to Seller’s performance or failure to perform its obligations as the previous Servicer under the Servicing Agreements or arising out of or in connection with any violation of any Applicable Requirements prior to the Assets Closing Date; (d) demands, requests, duties or liabilities relating to any obligor for which the operations related mortgage loan has been repaid in full, repurchased from the related RMBS Transaction or is otherwise no longer being serviced by the income Servicer as of Seller or any Seller Group for any Pre-the Closing Tax PeriodDate; and (de) Any and all claims (including product liability claims), counterclaims, offsets, defenses Liabilities arising out of or causes of action relating to products manufactured by Seller on any proceeding, cause of action, action, claim, arbitration, hearing, investigation, regulatory exam, consent order, litigation or before suit that (i) is pending, threatened or completed as of the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable date hereof with respect to all Liabilities Seller or its Affiliates or (ii) arises out of or relates to actions or omissions of Seller and in its capacity as Servicer under the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than Servicing Agreements during the Assumed Liabilities (collectively, period Seller acted as Servicer under the “Retained Liabilities”)Servicing Agreements.

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser Seller shall not assume, and shall be deemed not to have assumed, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include retain all liabilities other than and obligations except the Assumed Liabilities, including (collectively, the "Retained Liabilities"), and Buyer shall not assume and shall not be responsible to pay, perform or discharge any of the Retained Liabilities, including, but not limited toto the following: (a) any liabilities or obligations arising out of or relating to Seller's ownership or operation of the Business and all liabilities incurred or assumed the Purchased Contracts prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a)Date; (b) any and all liabilities or potential obligations relating to or arising out of the Excluded Assets; (c) any liabilities in respect or obligations for (i) Taxes relating to the Business, the Purchased Contracts or the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and (ii) any other Taxes of pending Seller for any taxable period prior to the Closing Date; (d) any liabilities or threatened litigation brought obligations of Seller relating to or to be brought in respect arising out of events(i) the employment, circumstances or facts occurring termination of employment, of any employee prior to the Closing, including or (ii) Plans or workers' compensation claims of any indemnification claims relating Employee which relate to events occurring prior to the Closing Date; (e) any liabilities or obligations of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or Agreement, the Transactionsother Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income fees and expenses of Seller or any Seller Group for any Pre-Closing Tax Periodcounsel, accountants, consultants, advisers and others; and (df) Any and all claims any breach of a Purchased Contract or liability under a Purchased Contract (including product liability claims), counterclaims, offsets, defenses other than performance thereunder) incurred or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or arising before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”).

Retained Liabilities. Notwithstanding anything in this Agreement to Except for the contraryAssumed Liabilities, Purchaser shall not assume and Purchaser shall not be obligated to pay or assume, and none of the assets of Purchaser shall be deemed not to have assumedor become liable for or subject to, any Liabilities liability, indebtedness, commitment, or obligation of Seller or the Businessany of its Affiliates, except as specifically provided in Section 2.3(a). All other liabilities, whether known or unknown, contingent fixed or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilitiescontingent, including but not limited to: (a) any and all liabilities incurred recorded or assumed prior to the Closing Date relating to current unrecorded, currently existing or former employees of Seller hereafter arising or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactionsotherwise, including, without limitation, the litigation identified on Schedule 4.21following (collectively, the "Retained Liabilities"): (a) any debt, obligation, expense or liability of Seller or any of its Affiliates (or any predecessor operator of the Business or the Acquired Assets) that is not an Assumed Liability; (b) any liabilities associated with or arising out of any of the Retained Assets; (c) Taxes attributable to the Assets any liabilities or the operations obligations in respect of periods or the income action or omissions of Seller or any Seller Group for any Pre-Closing Tax Period; andits Affiliates prior to the Effective Time (as hereinafter defined); (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses liabilities or causes obligations arising as a result of action relating to products manufactured any breach by Seller on at any time of any contract or before commitment that is not assumed by Purchaser; (e) any debt, obligation, expense, or liability arising out of or incurred solely as a result of any transaction of Seller occurring after the Closing Date Effective Time or arising out of any violation by Seller of any law, regulation, or ordinance at any time (including, without limitation, those pertaining to fraud, environmental, and shipped to customers on ERISA matters); (f) liabilities or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable obligations with respect to express or implied warranties of any kind or nature, including, without limitation, warranties of workmanship or merchantability, warranties express or implied by Seller in any written agreement and all Liabilities of Seller and warranties imposed by law, regulation, statute or otherwise, occurring prior to the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”).Effective Time; and

Retained Liabilities. Notwithstanding anything in this Agreement Section 2.3(a), the following Liabilities of Seller arising out of or relating to the contrary, Purchaser operation of the Business or the Assets shall not assume, remain the sole responsibility of and shall be deemed not retained, paid, performed and discharged solely by Seller (the “Retained Liabilities”): (i) any Liability arising from or related to have assumedthe Excluded Assets; (ii) any Liability for Taxes of any Person within Seller’s affiliated group, whether by reason of Treasury Regulation Section 1.1502-6, any Liabilities of Seller tax allocation or the Businesstax sharing agreements, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Planotherwise, including any accrued benefits Liability arising out of the current operation of the Business or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets with respect to any period (or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (dportion thereof) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers ending on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities Pre-Closing Taxes; (collectivelyiii) any Liability arising from or related to (A) to the extent that such Claim or Proceeding is brought within 10 years of the Closing Date, the presence or Release of Hazardous Materials on, under, from or affecting the Transferred Real Property, to the extent such presence or Release existed or occurred prior to the Closing Date (it being understood that, after title to a parcel of Transferred Owned Real Property is transferred to Buyer, ownership of, and responsibility for maintaining, any asbestos-containing material present inside that Transferred Owned Real Property shall not be a Retained Liability and shall be assumed by Buyer); (B) the generation, transfer, storage, treatment, recycling, or disposal, prior to the Closing Date, of Hazardous Materials by or on behalf of Seller, RSI or the Business, or (C) the presence or Release of Hazardous Materials on, under, from or affecting any Excluded Assets (the foregoing (A) through (C) are collectively referred to herein as the “Retained Environmental Liabilities”); (iv) to the extent that such claim is made or such Proceeding is brought within eighteen (18) months after the Closing Date, any Liability arising from or relating to any claim or Proceeding based on the actual or alleged infringement, misappropriation, or other violation of any Third Party intellectual property right, where such infringement, misappropriation, or violation occurred or allegedly occurred before the Closing Date, of any Third Party intellectual property right by (A) any product or service of the Business that was made, sold, offered for sale or provided by Seller in connection with the Business before the Closing Date or (B) any process or method to the extent used by Seller in connection with the Business before the Closing Date; (v) any Liability of Seller under this Agreement, any Ancillary Agreement or any other document executed in connection with the Contemplated Transactions; (vi) any Liability of Seller based upon Seller’s acts or omissions occurring after the Effective Time; (vii) any Liability (A) under the Seller Savings Plan and the Seller Stock Plans, (B) for the Single Trigger Severance Liability, and (C) for Claims Incurred by Acquired Employees and their respective Dependents prior to Closing with respect to Active Welfare Benefits; (viii) any Liability arising from or related to indebtedness for borrowed money to Third Parties; and (ix) any Liability with respect to any intercompany payables.

Retained Liabilities. Notwithstanding anything in this Agreement to the contrarySeller shall retain, and shall remain exclusively responsible for paying, performing and discharging when due, and Purchaser shall not assume, and shall be deemed not to assume or have assumed, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited toresponsibility for: (a) all liabilities and obligations relating to or arising out of the Excluded Assets; (b) all liabilities and obligations for Taxes based on the income of Seller arising out of or relating to the operation of the Business on or prior to the close of business on the Closing Date; (c) liability for suits, claims, proceedings and actions made or commenced before or after the Closing Date resulting from actual or alleged harm, injury or damage to persons, property or business by products sold or shipped by the Business on or prior to the Closing Date, regardless of whether those products were manufactured by the Business or when the incident or accident giving rise to such liability occurred or occurs; (d) all liabilities for Environmental Expenses and Environmental Liabilities not assumed by Purchaser pursuant to Section 2.1(d); (e) all liabilities and obligations relating to or arising out of the Benefits Plans or any employee benefit plan, arrangement or policy established, maintained, sponsored or contributed to by Seller or any ERISA Affiliates that does not cover or relate to employees of the Business and all liabilities incurred and obligations relating to the Retained Employees; (f) all liabilities and obligations relating to disputes with Xxxx Molding Company; (g) all liabilities for other claims, actions, suits, proceedings or assumed investigations arising out of events occurring solely on or prior to the Closing Date relating to current or former employees involving the operations of the Business. The liabilities and obligations of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any which do not constitute Assumed Liabilities and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to will be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured retained by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller hereunder shall be solely and exclusively liable with respect collectively referred to all Liabilities of Seller and as the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “"Retained Liabilities”)".

Retained Liabilities. Notwithstanding anything in this Agreement Except for executory obligations arising under the Assigned Contracts following the Closing Date not resulting from or relating to any breach, default, act or omission by any Seller on or prior to the contraryClosing Date, Purchaser the Sellers shall not retain, and pay and perform when due, and the Buyer and Lander shall in no event assume, and nor shall they be deemed not to have assumedliable for, any Liabilities obligations or liabilities of any Seller or (such obligations and liabilities, the Business, except as specifically provided in Section 2.3(a“Retained Liabilities”). All other liabilitiesFor avoidance of doubt, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilitiesinclude, including but not limited towithout limitation, the following: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits indebtedness of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a)Sellers; (b) any and all liabilities or potential obligations for Taxes of the Sellers with respect to the Brand Assets for any period, or any portion of any period, ending on or prior to the Closing Date, except for Taxes for which the Buyer is liable under Section 5.6 and except as set forth in Section 5.13; (c) all obligations or liabilities in respect relating to or arising out of pending the Excluded Assets; (d) all liabilities and obligations of the Sellers (whether express or threatened litigation brought implied, fixed or to be brought in respect contingent, known or unknown) existing or arising out of events, circumstances acts or facts omissions occurring prior to the Closing, including any indemnification claims relating liabilities or obligations arising at any time (before or after the Closing) to this Agreement make payments under (i) Paragraph 3 (with respect to shortfalls in product purchases or capital recovery payments), (ii) Paragraph 5 (with respect to purchases of inventory) and (iii) Paragraph 19 (with respect to certain inventory costs) of the TransactionsBaby Magic Supply Agreement, includingdated September 1, without limitation2000, between Seller B and CCL Custom Manufacturing, Inc. (the litigation identified on Schedule 4.21“CCL Agreement”); (ce) Taxes attributable to all liabilities and obligations of the Assets Sellers under Environmental Laws or the operations or the income for violation of Seller or any Seller Group for any Pre-Closing Tax PeriodRequirement of Law; and (df) Any and all claims (including any product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller under the Brands bearing a date code dated on or before the Closing Date and shipped prior to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectivelyNotwithstanding any provision herein, the “Retained Liabilities”)parties agree that any returns by customers of any Brand product occurring on or after the Closing Date (regardless of when such products were sold) shall relate exclusively to the operation of the Brands after the Closing Date for all purposes of this Agreement.

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser shall except for the Assumed Obligations and except to the extent of Buyer's obligation to defend, indemnify and hold harmless Sequa Chemicals pursuant to Section 8.03(d), Buyer does not assumeassume and Sequa and Sequa Chemicals shall, without any responsibility or liability of, or recourse to Buyer or any Buyer Affiliate, retain and shall be deemed not to have assumedpay, perform and discharge all liabilities and obligations of any nature of Sequa or Sequa Chemicals, or claims of such liability or obligation, whether foreseen, unforeseen, accrued, unaccrued, known, unknown, liquidated or unliquidated, matured or unmatured, now existing or which may arise in the future, including, without limiting the generality of the foregoing, any Liabilities liability, obligation or claim arising out of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited toresulting from: (a) any and all liabilities incurred injury to or assumed prior disease or death of any person or damage to or loss of any property to the Closing Date relating to current extent resulting from or former employees arising out of Seller or any Planact or omission by Sequa Chemicals or Sequa regardless of whether such injury, including any accrued benefits of the current disease, death, damage or former employees of Seller payable on loss occurs prior to, at or after the Closing Date except in each case as specifically provided in Schedule 2.3(a)Time and whether based on negligence, breach of warranty, breach of contract, products liability, strict liability, workers compensation or any other theory; (b) any and violation by Sequa Chemicals or Sequa of any Legal Requirement, any Permit, any Order or the requirements of any Governmental Authority; (c) any qualified or nonqualified, funded or nonfunded pension, profit sharing, health, welfare, medical insurance or other employee benefit plan or arrangement established, participated in, or maintained by Sequa Chemicals or Sequa; (d) except to the extent included as an Accrued Expense on the Closing Working Capital Statement, all Taxes for which Sequa Chemicals or Sequa is responsible under any Legal Requirement; (e) all liabilities and obligations arising or potential liabilities in respect resulting: (i) from any breach or default of pending or threatened litigation brought or any Assumed Contract to be brought in respect of events, circumstances or facts the extent occurring prior to the ClosingClosing Time or any performance or non-performance prior to the Closing Time which, including by the lapse of time or delivery of notice (or both), would constitute a breach or default of any indemnification claims relating Assumed Contract (including, without limitation, any breach or default of any warranty (express or implied) arising with respect to this Agreement the subject matter of any Assumed Contract), or (ii) from the Transactionstermination or cancellation prior to the Closing Time of any Assumed Contract; (f) all liabilities and obligations in respect of any contract, agreements, contract rights, equipment and other personal property leases, licenses, purchase and sales orders, proposals, quotations, bids, arrangements and understandings of Sequa Chemicals, Sequa or SCSA which is not an Assumed Contract; (g) except to the extent of the obligations of Sequa Chemicals assumed by Buyer under Section 2.04(c), products sold or services performed by Sequa Chemicals or Sequa, including, without limitation, the litigation identified on Schedule 4.21; all liabilities and obligations (ci) Taxes attributable to the Assets any Person other than Sequa Chemicals' customer, (ii) for personal injury or the operations property damages, (iii) for consequential, incidental, punitive, indirect or the income of Seller or any Seller Group special damages, and (iv) for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes claim in excess of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities purchase price of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”).a product;

Retained Liabilities. Notwithstanding anything to the contrary contained in this Agreement Agreement, J. Xxxxxxx xereby agrees to the contraryretain, Purchaser shall not and does hereby assume, and shall be deemed not to have assumed, any certain Liabilities of Seller or SELLER (the Business, except as specifically provided in Section 2.3(a"Retained Liabilities"). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. The Retained Liabilities shall include include, without limitation, the following: any Liability of SELLER for expenses, Taxes or fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement, the other Documents or the consummation (or preparation for the consummation) of the transactions contemplated hereby or thereby on behalf of or as expended for the benefit of or by Equityholders up through Closing, or incurred on their behalf after Closing (including all liabilities attorneys, accountants and brokerage fees and any other than Assumed Liabilitiesprofessional service fees incurred by or imposed upon such SELLER); any Liability of SELLER under any agreement, including but contract, commitment, document, license or lease not limited to: (a) listed on Section 1.3 below and any and all liabilities incurred Liability of SELLER under any Contract or assumed Permit arising out of a breach or alleged breach thereof that occurred as of or prior to the Closing; any Liability of SELLER with respect to any Taxes for any period or part thereof ending on or prior to the Closing Date relating to current or former employees of Seller or any PlanDate, including any accrued benefits Liability for unpaid taxes of any Person as a transferee, successor by contract or otherwise; any Liability of SELLER (i) arising by reason of any violation or alleged violation of, or Liability under, any Law or any requirement of any Governmental Authority, or (ii) arising by reason of any breach or alleged breach by SELLER or Equityholder of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, to the current extent such Liability results from or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect arises out of events, facts or circumstances occurring or facts occurring existing on or prior to the Closing, including notwithstanding that the date on which any indemnification action or claims is commenced or made is after the Closing; any Liability of SELLER arising under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), except to the extent, and in the proportion, that the facts, or circumstances underlying any such Liability are first created by the operation of the Business after the Closing Date, notwithstanding that the date on which any action or claim is commenced or made is after the Closing. any Liability of such SELLER for a warranty claim for any service provided by SELLER on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of SELLER, any Equityholder or SELLER employees or agents; any Liability of SELLER relating to this Agreement any legal action or Proceeding arising out of or in connection with the conduct of SELLER or the TransactionsBusiness prior to the Closing or any other conduct of SELLER or their respective officers, directors, managers, members, employees, stockholders, consultants, agents or advisors, arising out of or in connection with conduct prior to closing, whether or not disclosed on the Schedules hereto; Notwithstanding Subsections (d), (e), (f) or (g) above, if a liability occurs which is attributable to actions or inactions taken by SELLER before or after the Closing Date, then such liability and obligations will be apportioned based upon the respective actions or inactions occurring before and after Closing, with no special apportionment of liability to Equityholders by reason of the action or inaction, or any pattern thereof, having allegedly begun before Closing. any Liability of SELLER for bonuses or like payments to the Equityholders or any Affiliate thereof or any employees of SELLER (whether pursuant to a written agreement or an oral arrangement) for the period ending on or prior to the Closing, including, without limitation, any profit based compensation owed to any officer, manager or other employee of SELLER (whether pursuant to a written agreement or an oral arrangement); Any Liability of SELLER for post-Closing claims and invoice credits based on events that transpired prior to or on the litigation identified on Schedule 4.21; (c) Taxes attributable Closing; Any Liability of SELLER to any former stockholder of SELLER; and Any other Liability of SELLER not expressly listed in this Section 1.2 arising out of transactions entered into at or prior to the Assets Closing, or from any action or inaction at or prior to the operations Closing, any damage, accident, injury or death occurring prior to the income Closing or from any state of Seller facts existing at or any Seller Group for any Pre-Closing Tax Periodprior to the Closing, regardless of when asserted; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”).

Retained Liabilities. Notwithstanding anything Seller shall retain all liabilities, duties and obligations with respect to (a) all operating expenses related to the Purchased Assets and attributable to the period before the Effective Time and during the time that Sellers owned the affected Purchased Assets; provided, however, that (i) Sellers’ retention of the obligations set forth in this Agreement to Section 2.5(a) shall terminate on the contraryfirst anniversary of the Closing, Purchaser shall (ii) any claim against Sellers under this Section 2.5(a) which is not assume, asserted by a notice as herein provided within such time period may not be pursued and shall thereafter be deemed not to have assumedforever barred and (iii) after such termination, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise such obligations shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than become Assumed Liabilities, (b) royalties and rentals (including but not limited to: the Suspension Amounts) due under the Purchased Assets attributable to the period before the Effective Time and any interest or penalties arising directly in connection therewith, (ac) Taxes related to the Purchased Assets and attributable to the period before the Effective Time, (d) any liability or obligation of 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 all liabilities incurred any of their current or assumed former employees or the termination by Sellers prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactionssuch employment relationship with Sellers, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets liabilities for severance or the operations similar benefits or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities any claim for wrongful discharge, breach of Seller 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 Agreement and arising out of, relating to or resulting from any bulk transfer or similar laws of any jurisdiction and (g) the Businessinjury or death of any person in connection with the ownership, whether disclosed operation or undisclosed, whether known or unknown, whether fixed or contingent, other than use of the Assumed Liabilities Purchased Assets prior to the Closing without limit and notwithstanding anything to the contrary contained herein (collectively, the “Retained Liabilities”).

Retained Liabilities. Notwithstanding anything in this Agreement In connection with the conveyance of the Purchased Assets to the contrary, Purchaser Buyer shall not assume, and Seller shall be deemed not to have assumedretain, any Liabilities all indebtedness and obligations of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before existing at the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business(other than, whether disclosed or undisclosedin each case, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities 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, (ii) liabilities disclosed or reserved against in the Financial Statements or incurred or accruing after the date of such Financial Statements consistent with Sections 5.2 and 5.3 hereof prior to Closing, (iii) claims or potential claims by Government Programs and/or Blue Cross 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 and obligations of Seller and its Affiliates arising under the terms of the Government Programs, Blue Cross, or other third party payor programs relating to services rendered by Seller prior to Closing, (v) any liabilities or obligations to the extent arising with respect to any of the Excluded Assets, (vi) any civil or criminal obligation or liability resulting from any material violation by Seller prior to the Closing of federal, state or local law or resulting from any federal, state or local investigations of, or federal, state or local government claims or actions against, Seller with respect to acts or omissions of Seller prior to the Closing constituting a material violation of federal, state or local law, (vii) federal or state income tax liabilities of Seller, and (viii) except for the Assumed Liabilities, other liabilities existing at, or indebtedness or obligations of Seller undertaken or assumed, prior to Closing.

Retained Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Purchaser shall Buyer does not assumeassume or agree to pay, satisfy, discharge or perform, and shall not be deemed not by virtue of the execution and delivery of this Agreement or any document delivered at the Closing pursuant to this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any Liabilities liability, obligation or indebtedness of Seller, whether primary or secondary, direct or indirect, other than the Assumed Liabilities. Seller shall retain all liabilities and obligations of Seller or other than the Business, except as Assumed Liabilities to the extent specifically provided in Section 2.3(a1.3 subject to the prorations set forth in Section 9.3 (all such liabilities and obligations retained by Seller being referred to herein as the “Retained Liabilities”). All other liabilitiesBy way of illustration, known or unknownand not of limitation, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited toinclude: (a) All liabilities, obligations and commitments of Seller or any and predecessor(s) or Affiliate(s) of Seller relating to Taxes (as defined in Article 10) with respect to the Assets or otherwise, for all liabilities incurred periods, or assumed portions thereof, on or prior to the Closing Date relating Date, subject to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except prorations set forth in each case as specifically provided in Schedule 2.3(a)Section 9.4; (b) All liabilities, obligations and commitments for any and all liabilities legal, accounting, investment banking, brokerage or potential liabilities similar fees or expenses incurred by Seller in respect of pending connection with, resulting from or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior attributable to the Closing, including any indemnification claims relating to transactions contemplated by this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21Agreement; (c) Taxes attributable to the Assets Liabilities, obligations and commitments for which Buyer does not expressly assume an obligation or the operations or the income of liability as described in Section 1.3; (d) Liabilities, obligations and commitments for any borrowed money incurred by Seller or any Seller Group for any Pre-Closing Tax Periodpredecessor(s) or Affiliate(s) of Seller; and (de) Any All liabilities, obligations and all claims (including product liability claims), counterclaims, offsets, defenses or causes commitments of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosedSeller, whether known or unknown, whether fixed disclosed or contingentundisclosed, other than the Assumed Liabilities (collectivelyresulting from, caused by or accruing out of, at any time, directly or indirectly, the “Retained Liabilities”)conduct of its business or ownership or lease of any of its properties or assets or any properties or assets previously used by Seller at any time prior to or on the Closing Date.

Retained Liabilities. Notwithstanding anything Buyer shall not be required to assume, pay or discharge any liability or obligation of Sellers related to the Business, or otherwise, unless, and only to the extent, specifically provided for in Section 2.1 of this Agreement to (the contrary"Retained Liabilities"). Without limiting the foregoing, Purchaser Buyer shall not assume, and Sellers shall be deemed not to have assumedretain, pay and discharge as and when due, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the and all liabilities and obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed LiabilitiesSellers, including but not limited relating to: (a) Any warranty and product liability claims to the extent arising out of work performed by the Business on or prior to the Closing Date; (b) All other liabilities relating to the Business to the extent arising prior to or on the Closing Date, except for liabilities described in Sections 2.1 (c) and (d); (c) Any liability relating to the Business that arises after the Closing Date to the extent that such liability arises out of or relates to any occurrence, action or failure of action on or prior to the Closing Date, except liabilities described in Sections 2.1 (c) and (d); (d) All trade payables and purchase money indebtedness of any of Sellers, other than those liabilities described in Section 2.1(d); (e) Any and all Taxes attributable to or incurred in connection with the operations of the Business or the Transferred Assets prior to or on the Closing Date and any Taxes arising as a result of the sale of the Business and the related transfer of Transferred Assets to the Buyer, and any transferee or secondary liability of Sellers in respect of any Tax or any liability of Sellers for any Tax of any Person other than Sellers, imposed by Law, Contract or otherwise (specifically excluding all Transfer Taxes, as defined in and which shall be dealt with as provided in Section 3.3) whether or not due or assessed until after the Closing Date, it being agreed that Taxes assessed and payable for periods both before and after the Closing Date shall be determined as of the Closing Date so that Sellers shall retain liability for such Taxes attributable to any period prior to and including the Closing Date and Buyer shall be liable for such Taxes for any period beginning after the Closing Date; (f) Any liability related to any office, warehouse or other facility and any and all real property that was owned, leased or operated by Sellers at any time on or prior to the Closing Date, to the extent such liability relates to acts or omissions that occurred on, at or appurtenant to such facilities and real property on or prior to the Closing Date; (g) Any obligation to or in respect of any employee or former employee of Sellers existing as of the Closing Date for unpaid wages or salary, severance pay and unpaid or unused vacation, sick leave and other paid-time-off benefits, or other compensation and any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation to the extent such claim is based upon or alleged to be based upon acts or omissions which occurred on or prior to the Closing Date. (h) Any and all obligations and liabilities of Sellers, whenever accrued, with respect to any of the ERISA Plans, and any and all liabilities incurred and obligations payable with respect to any other employee benefit plan, program, agreement, policy or assumed arrangement maintained by Sellers, whenever accrued; (i) All liabilities associated with the Retained Assets; and (j) All liabilities of any of Sellers related to litigation commenced on or prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or commenced after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities to the extent arising out of occurrences, actions or potential liabilities in respect of pending inactions on or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”).

Retained Liabilities. Notwithstanding anything in this Agreement to the contrarySeller acknowledges and agrees that Seller and its Affiliates shall retain, and Purchaser shall not assume, and shall assume or otherwise be deemed not to have assumedresponsible for, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, its Affiliates other than the Assumed Liabilities Liabilities, whether or not relating to the Purchased Assets or the Products (collectively, the “Retained Liabilities”). Seller shall remain responsible for all Retained Liabilities. For the avoidance of doubt, Retained Liabilities shall include the following, whether or not the same are disclosed to Purchaser in or pursuant to this Agreement or otherwise: (a) subject to Section 2.05(b), all Liabilities arising out of or relating to Legal Proceedings, regardless of when such Legal Proceeding was commenced or made, and irrespective of the legal theory asserted, arising from the development, commercialization, manufacture, packaging, import, marketing, distribution or sale of the Products or the use of the Purchased Assets, in each case, by or on behalf of Seller or its Affiliates prior to the Closing, including all Legal Proceedings relating to the alleged infringement or misappropriation by Seller of any third party IP rights for the development, commercialization, manufacture, packaging, import, marketing, distribution, sale or use of the Products before the Closing;; (b) any Liabilities arising out of or relating to products liability claims relating to the Products (including claims alleging defects in the Products and claims involving the death of or injury to any individual relating to the Products) sold by or on behalf of Seller or its Affiliates prior to the Closing; (c) all Liabilities arising out of or relating to any Transferred Contract, to the extent relating to the period of time prior to the Closing; (d) all Liabilities related to any invoices, bills, accounts payable or other payables due and owed to any third party arising prior to the Closing out of or in connection with developing, commercializing, manufacturing (or having manufactured), packaging, importing, exploiting, marketing, distributing or selling the Products by or on behalf of Seller or its Affiliates prior to the Closing; (e) any Taxes apportioned to Seller pursuant to this Agreement; (f) all Liabilities to the extent related to the Excluded Assets; (g) all indebtedness of Seller or its Affiliates for borrowed money; (h) all Liabilities with respect to any current or former employee of Seller or its Affiliates; and (i) any other Liabilities (including Liabilities related to Taxes) arising out of or relating to the use, ownership, possession, operation or management of the Purchased Assets or the sale of any of the Products by Seller or its Affiliates, in each case prior to the Closing and which have not been specifically allocated in Section 2.04 or Section 2.05. For purposes of this Section 2.05, any co-Promoters or joint venturers of Seller or its Affiliates shall be deemed to have taken actions on behalf of Seller and its Affiliates.

Retained Liabilities. Notwithstanding anything in this Agreement Subject to the contrary, Purchaser shall not assumeSection 2.5, and shall be deemed not to have assumedexcept for obligations under the Brand Contracts, any Liabilities of Seller or Brand Permits and Purchase Orders that arise after the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities Closing (other than Assumed Liabilitiespost-Closing obligations that result from or relate to any breach, including but not limited to: (a) any and all liabilities incurred default, act or assumed omission by the Sellers on or prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(awhich shall remain Retained Liabilities); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to Sellers shall retain, and pay and perform when due, and shall jointly and severally indemnify and hold harmless the Assets Purchasers from and against, and the Purchasers shall in no event assume, nor shall they be liable for, any obligations or the operations or the income liabilities of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any such obligations and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectivelyliabilities, the “Retained Liabilities”). For avoidance of doubt, the Retained Liabilities shall include, without limitation, the following: (a) any indebtedness of any Seller; (b) any liability or obligation for Taxes of any Seller, including with respect to the Brand Assets, for any period, or any portion of any period, ending prior to the Closing Date; (c) any liability or obligation relating to or arising out of the Excluded Assets; (d) any liability or obligation of any Seller (whether express or implied, fixed or contingent, known or unknown) existing or arising out of acts or omissions of the Sellers occurring prior to the Closing Date; (e) any liabilities or obligations of any Seller existing or arising prior to Closing or arising out of or resulting from any event or occurrence occurring prior to Closing which results in a liability or obligation after the Closing, in each case, under Environmental Laws or for violation of any Requirement of Law; (f) any liability or obligation of any Seller under any contractual arrangement with an Affiliate; (g) any product liability claims relating to Brand Products bearing a manufacturing date code prior to the Closing Date or as provided in the Manufacturing Agreement bearing a manufacturing date code on or after the Closing Date; (h) any liability or obligation for refunds, credits, allowances or other financial accommodations to customers attributable to Brand Products shipped prior to the Closing Date (other than relating to returns of the Brand Products shipped prior to the Closing Date); (i) any liability or obligation relating to or arising from the alleged infringement of the intellectual property rights of a third party, including but not limited to Applied Interact, its subsidiaries or assigns and any third party responsible in any way for the administration or operation of online sweepstakes, arising from any Seller’s conduct or use of online sweepstakes with respect to any of the Brands, including the continuation of such sweepstakes by Purchasers following the Closing Date until their respective published termination dates; and (j) any liability arising under or in respect of Brand Contracts as a result of any breach thereof, default thereunder or act or omission of Sellers that occurred prior to the Closing Date.

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser Buyer shall not assumeassume 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 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, pay all accrued benefits, severance pay and other 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 shall be deemed whether or not to have assumed, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(asuch employees are hired by Buyer upon Closing). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to: ; (aiii) any and all liabilities incurred claims asserted against the Business or assumed any of the Assets relating to any event (whether act or omission) prior to the Closing Date relating to current or former employees of Seller or any PlanDate, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; payment of all taxes; (civ) Taxes attributable to the Assets or balance of any obligations under the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and Siemens Contract (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities portion thereof explicitly assumed by Buyer pursuant to Section 1.3(a)(iii)), including without limitation any obligation to purchase equipment and any obligation thereunder arising from any breach or default thereof; or (collectivelyv) any other obligation, liability, debt, or commitment of Seller not explicitly assumed by Buyer hereunder. The foregoing in this Section 1.3(b) shall be 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 charge or cost to Buyer.

Retained Liabilities. Notwithstanding anything in Buyer shall not and does not by execution and performance of this Agreement or otherwise (including under theories of successor liability) assume or become liable for any obligations, liabilities or indebtedness of Seller, whether relating to the contraryBusiness or otherwise, Purchaser shall not assume, and shall be deemed not to have assumed, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, whether known or unknown, contingent due or otherwise to become due, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, absolute, contingent, executory or otherwise, howsoever or whenever arising, that are not expressly assumed by Buyer or Buyer's designee pursuant to Section 2.2 and Seller shall remain the obligations of Seller. Retained Liabilities shall include retain, pay and discharge when due all liabilities such obligations, liabilities, and indebtedness (other than the Assumed Liabilities) (the "Retained Liabilities"), including but not limited towithout limitation the following: (a) Any liabilities, obligations, penalties or damages arising under or from as applicable (i) the Contracts in connection with any and all liabilities incurred breaches or assumed prior to defaults thereunder occurring on or before the Closing Date relating to current or former employees of Seller or any PlanDate, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured breaches by Seller of any warranty or representation under any Contracts with respect to services rendered on or before the Closing Date, (ii) any damages, fines, interest or penalties assessed against Seller by any Governmental Entity arising out of acts or omissions occurring on or before the Closing Date, (iii) any infringement by Seller on the rights of others in connection with the Business occurring on or before the Closing Date and shipped or (iv) fraud, breach, misfeasance, negligence, strict liability in tort, injury to customers persons or property or under any other theory relating to the Business occurring on or before the Closing Date. As between Seller and Purchaser; (b) Any assessments, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities claims or liabilities (including interest and/or penalties) for Taxes arising out of, accruing or resulting from the operation of Seller and the Business, whether disclosed or undisclosedthe use, whether known ownership or unknownoperation of the Purchased Assets on or before the Closing Date and/or resulting from the sale, whether fixed transfer or contingentpurchase of the Purchased Assets hereunder, except to the extent otherwise provided in Section 2.7 or Section 10.1; (c) Any liabilities arising under the Excluded Contracts, except as otherwise provided in Section 2.1.3; (d) Any liabilities related to any Plan, except as otherwise provided in Schedule 7.1; (e) Any liabilities related to claims or actions of any kind, including with regard to the payment or nonpayment of bonuses prior to the Closing Date, related to or arising out of the employment or termination by Seller of prior or current employees, including In-Scope Employees; and (f) Any other than the Assumed Liabilities (collectively, the “Retained Liabilities”liabilities and obligations listed on Schedule 2.3(f).

Retained Liabilities. Notwithstanding anything in this Agreement to the contrarySeller shall retain, and shall remain exclusively responsible for paying, performing and discharging when due, and Purchaser shall not assume, and shall be deemed not to assume or have assumed, any Liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited toresponsibility for: (a) all liabilities and obligations relating to or arising out of the Excluded Assets; (b) all liabilities and obligations for Taxes based on the income of Seller arising out of or relating to the operation of the Business on or prior to the close of business on the Closing Date; (c) liability for suits, claims, proceedings and actions made or commenced before or after the Closing Date resulting from actual or alleged harm, injury or damage to persons, property or business by products sold or shipped by the Business on or prior to the Closing Date, regardless of whether those products were manufactured by the Business or when the incident or accident giving rise to such liability occurred or occurs; (d) all liabilities for Environmental Expenses and Environmental Liabilities not assumed by Purchaser pursuant to Section 2.1(d); (e) all liabilities and obligations relating to or arising out of the Benefits Plans or any employee benefit plan, arrangement or policy established, maintained, sponsored or contributed to by Seller or any ERISA Affiliates that does not cover or relate to employees of the Business and all liabilities incurred and obligations relating to the Retained Employees; (f) all liabilities and obligations relating to disputes with Mack Molding Company; (g) all liabilities for other claims, actions, suits, proceedings or assumed investigations arising out of events occurring solely on or prior to the Closing Date relating to current or former employees involving the operations of the Business. The liabilities and obligations of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any which do not constitute Assumed Liabilities and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to will be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured retained by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller hereunder shall be solely and exclusively liable with respect collectively referred to all Liabilities of Seller and as the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “"Retained Liabilities”)".

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser shall not assume, and shall be deemed not to have assumed, any Liabilities of Seller or the Business, except Except as specifically expressly provided in Section 2.3(a). All other 2.3, the Buyer will not assume any liabilities, commitments or obligations (known or unknown, contingent or otherwise absolute and whether or not determinable as of the Closing) of the Sellers except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations (known or unknown, contingent or absolute and whether or not determinable as of the Closing) not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Sellers (the “Retained Liabilities”), who shall remain liable therefor unconditionally and without right of set-off. The Sellers hereby irrevocably and unconditionally waive and release the obligations of Seller. Buyer from all Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but any Retained Liabilities created by statute or common law. Without limiting the foregoing, except as expressly provided in Section 2.3, all of the following shall be considered Retained Liabilities and not limited toAssumed Liabilities for the purposes of this Agreement: (a) any and all liabilities incurred and obligations of the Sellers arising out of or assumed relating to the conduct of the Business or the ownership of the Purchased Assets on or prior to the Closing Date relating to current or former employees of Seller or any PlanDate, including any accrued benefits of the current and all claims, demands, actions, suits or former employees of Seller payable on legal proceedings that are pending or have been or are asserted or threatened prior to or after the Closing Date except against the Sellers, the Business or the Purchased Assets, or that may be asserted, or that have arisen or arise in each case as specifically provided any way from or in Schedule 2.3(a)connection with (i) the conduct or operation of the Business or the ownership of the Purchased Assets on or prior to the Closing Date, or (ii) any other business or activities of the Sellers conducted prior to or after the Closing Date; (b) any and all liabilities or potential liabilities obligations in respect of pending Excluded Assets; (c) any obligations of the Sellers for expenses, Taxes or threatened litigation brought fees incident to or to be brought in respect arising out of eventsthe negotiation, circumstances preparation, approval or facts occurring prior to the Closing, including any indemnification claims relating to authorization of this Agreement or the Transactionsconsummation of the transactions contemplated hereby, including, without limitation, all attorneys’ and accountants’ fees and all brokers’ or finders’ fees or commissions payable by the litigation identified on Schedule 4.21Sellers; (cd) Taxes attributable any obligation of the Sellers under or arising out of this Agreement; (e) liabilities to the Assets extent that the Sellers are insured or otherwise indemnified or which would have been covered by insurance (or indemnification) but for a claim by the insurer (or the operations indemnitor) that the insured (or the income indemnitees) had breached its obligations under the policy of Seller insurance (or the contract of indemnity) or had committed fraud in the insurance application; (f) any liabilities or obligations, the existence of which constitute a breach of the representations, warranties or covenants of the Sellers contained in this Agreement; (g) any obligations or liabilities of the Sellers to indemnify its officers, directors, employees or agents; (h) all federal, state, local, foreign and other Taxes imposed on the Sellers, including (i) any Tax that has been or may be incurred as a result of the Sellers’ operation of the Business or ownership of the Purchased Assets whether or not assessed or determined on, before or after the Closing Date, (ii) any Tax unrelated to the Sellers’ operation of the Business or ownership of the Purchased Assets, (iii) any Taxes imposed as a result of the consummation of the transactions contemplated by this Agreement, and (iv) any liability for Taxes pursuant to a Tax sharing agreement or Tax indemnity, or as a transferee or successor, by contract or otherwise; (i) any product warranty, product liability, service warranty or service liability of any nature in respect of products of the Business manufactured or sold or services provided prior to Closing; (j) any liabilities or obligations of the Sellers arising out of any capital leases; (k) any liabilities or obligations of the Sellers, contingent or otherwise, for any indebtedness of Sellers; (l) any liability or obligation with respect to employment, termination of employment, compensation or employee benefits of any nature (including, but not limited to, the benefits provided under the Benefit Plans) owed to any employee or former employee of Sellers or its affiliates (or the beneficiary of any employee or former employee) whether or not the affected employee or former employee becomes a Business Employee, that arise out of or relates to employment or the employment relationship between the Sellers or its affiliates and such employee or former employee or the termination of such relationship; (m) any Environmental Liabilities; (n) any liability or obligation of the Business to the Sellers or any Seller Group for any Pre-Closing Tax Periodof its affiliates; and (do) Any and all claims (including product notwithstanding the provisions of any consent to assignment of an Assumed Contract, any liability claims), counterclaims, offsets, defenses or causes of action relating obligation under any Assumed Contract to products manufactured by Seller the extent such liability or obligation relates to any period prior to or on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect including any liability or obligation for any breach of or default under any Assumed Contract which liability or obligation relates to all Liabilities of Seller and any such breach or default occurring prior to or on the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”)Closing Date.

Retained Liabilities. Notwithstanding anything in With the exception of the Assumed Liabilities, Buyer shall not, by the execution and performance of this Agreement to the contraryAgreement, Purchaser shall not assumeor otherwise, and shall assume or otherwise be deemed not to have assumedresponsible for any liability or obligation of any nature of Seller, any Liabilities of Seller whether matured or the Businessunmatured, except as specifically provided in Section 2.3(a). All other liabilitiesliquidated or unliquidated, fixed or contingent, or known or unknown, contingent whether arising out of occurrences prior to, at or otherwise shall remain after the obligations of Seller. date hereof (individually, a "Retained Liabilities shall include all liabilities other than Assumed Liability" and collectively, the "Retained Liabilities"), including but not limited to: including, without limitation, those arising from: (a) any and all liabilities incurred liability or assumed obligation under or in connection with the Excluded Property; (b) any federal, state, local, provincial or other foreign income, capital gain or other tax payable with respect to Seller, the SMT Business, the Purchased Assets or the Assumed Liabilities for any period prior to the Closing Date relating to current or former employees Date; (c) any indebtedness of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); for borrowed money; (bd) any fees and all liabilities or potential liabilities expenses incurred by Seller in respect of pending or threatened litigation brought or to be brought in respect of eventsconnection with negotiating, circumstances or facts occurring prior to the Closingpreparing, including any indemnification claims relating to closing and carrying out this Agreement or and the Transactionstransactions contemplated by this Agreement, including, without limitation, the litigation identified on Schedule 4.21; fees, disbursements and expenses for Seller's investment bankers, attorneys, accountants and consultants; (ce) Taxes attributable to the Assets any occurrence or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and circumstance (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown) which occurs prior to the Time of Closing and which constitutes, or which by the lapse of time or delivery of notice (or both) would constitute, a breach or default under any lease, contract, instrument or agreement of Seller (whether fixed written or contingentoral); (f) any injury to or death of any person or damage to or destruction of any property resulting from or arising out of any occurrence or circumstance which occurs or exists at or prior to the Time of Closing, regardless of whether such injury, death, damage or destruction occurs prior to, at or after the Time of Closing and whether based on negligence, breach of warranty, breach of contract, products liability, strict liability or any other than theory; (g) any violation of the Assumed Liabilities requirements of any governmental authority; or (collectivelyh) any employee benefit plan or any other fringe benefit program maintained by Seller or to which Seller contributes or any contributions, the “Retained Liabilities”)benefits or liabilities therefor or any liability for Seller's withdrawal or partial withdrawal from, or termination of, any such plan or program; or (i) any lease of real property.

Retained Liabilities. Notwithstanding anything Except for the Assumed Liabilities and notwithstanding any other provision in this Agreement to the contrary, Purchaser Buyer LLC shall not assumeassume or become in any way responsible to pay, and shall be deemed not to have assumed, perform or discharge any Liabilities of Seller or any of Seller’s Affiliates of any kind or nature whatsoever other than the Assumed Liabilities, and Seller shall remain exclusively liable and responsible for, pay and satisfy in due course any and all Retained Liabilities and obligations arising under or in connection with Seller’s ownership of the Purchased Assets, the Licenses and the Business. Buyer LLC shall specifically, except as specifically provided in Section 2.3(a). All other liabilitieswithout limitation, known not assume any Liability of Seller or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilitiesany Member not expressly assumed herein, including but not limited toto any Retained Liability resulting from: (ai) any and all liabilities incurred Any claim made by one or assumed prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactionsmore third parties involving Seller, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets governmental agencies, customers, vendors, employees, independent contractors, creditors, alleged lenders, alleged “silent” owners or the operations or the income of Seller or alleged investors, and any Seller Group for any Pre-Closing Tax Periodbroker; and (dii) Any Liability between Seller and any Member or any other owner or debtor of Seller, and any Liability created or caused in any way by Seller or any Member; and (iii) Any income, transfer, sales, use, payroll or other Taxes arising in connection with Seller’s ownership and operation of the Purchased Assets or the Business for any taxable period (or portion thereof) that ends on the Closing Date and any obligations arising from any and all federal, state, or local tax audits concerning Taxes due and owing up to and including the Closing Date; and (iv) Any Liability that arises out of, related to, or in connection with, a breach or violation or non-compliance by Seller prior to the Closing or any such breach, violation or non-compliance by Seller arising following the Closing that results from Events occurring prior to the Closing; and (v) Any claim, suit, action, arbitration, proceeding, investigation, or other similar matter which relates to Seller, any Member (collectively with “Seller”, “Seller”), or Seller’s ownership of the Purchased Assets, Licenses, or operation of the Business prior to the Closing; and (vi) Obligations under any Business Contracts not assumed by Buyer LLC in writing; and (vii) All Liabilities associated with the Purchased Assets arising or accruing before Closing; and (viii) Any and all Transfer Expenses, subject to the provisions herein regarding an equal (50%|50%) division of any transfer or sales taxes incident to the Transactions; and (ix) All fees, taxes, and other charges associated therewith as required to renew and maintain the Licenses in good standing arising before the Closing; and (x) All fees, taxes, and other charges associated therewith as required to maintain the Lease in good standing arising before the Closing; and (xi) The Lease arising or accruing before the Closing; and (xii) Any Liabilities claimed or owed to any present or former employees, officers, directors, retirees, contractors or consultants of Seller, including: any liabilities associated with any claims for wages, benefits, bonuses, accrued vacation, deferred compensation, retirement savings, workers’ compensation, severance, retention, termination or other payments; any liabilities arising under or in connection with any benefit plan; and any claim or right to indemnification, reimbursement or the advancement of funds accruing prior to the closing; and (including product liability claims)xiii) Any Liabilities claimed or owed to any Governmental Authority, counterclaims, offsets, defenses to the extent arising out of or causes of action relating to products manufactured facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller prior to the Closing; and (xiv) Any Liabilities associated with debt, loans or credit facilities of Seller or related to the Purchased Assets; and (xv) Any Liabilities: (1) which are not validly and effectively assigned to Buyer LLC pursuant to this Agreement; (2) which do not conform to the representations and warranties contained in this Agreement; or (3) to the extent such liabilities arise out of or relate to a breach by Seller on or before the Closing Date and shipped prior to customers on or before the Closing Date. As between Seller and PurchaserClosing, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, all the foregoing Liabilities described in this Subsection 1(d), the “Retained Liabilities”). Notwithstanding the above, and in addition to any other remedy available to Buyer LLC at law or equity, Buyer LLC shall have the right, but not the obligation, to pay any claim or Liabilities on behalf of Seller related to any excluded Liability not timely satisfied by Seller and deduct the amount of such payment, including legal expenses incurred by Buyer LLC in connection therewith, from payments owed to Seller under the Promissory Note.

Retained Liabilities. Notwithstanding anything to the contrary contained in 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 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 contraryconduct of the Business prior to Closing and any other Taxes relating to the DSL Business or any other non-Business activities of Seller, Purchaser shall not assume(iii) indebtedness for borrowed money or deferred purchase price for fixed assets, and shall be deemed not to have assumed(iv) inter-company payables, any Liabilities of Seller loans or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known inter-company liabilities or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilitiesany kind or nature, including but not limited to: (av) breach of contract, breach of warranty, tort, infringement or violation of any and all liabilities incurred or assumed prior Legal Requirement to the Closing Date relating to current or former employees extent arising out of Seller or any Planfacts, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances actions or facts inactions occurring prior to the Closing, including (vi) litigation, claim, assessment, action, suit, proceeding, order, judgment, decree or investigation of any indemnification claims relating to this Agreement kind or the Transactionsnature arising out of facts, includingevents, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable actions or inactions occurring prior to the Assets 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 operations or Closing Date (except to the income extent expressly assumed by Buyer as reflected in Section 9.6), (viii) employment and employee benefits-related claims, obligations and liabilities of any employees of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims of its Affiliates who are not Transferred Employees (including product liability claims), counterclaims, offsets, defenses former employees) whether incurred prior to or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before after the Closing Date. As between , (ix) fees, costs or expenses incurred by Seller in connection with the preparation, negotiation, execution, delivery and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities performance of Seller this Agreement and the Businessother transactions contemplated hereby, whether disclosed or undisclosedand (x) those accrued liabilities, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities obligations and expenses expressly set forth on SCHEDULE 2.4 hereto (collectively, the “Retained Liabilities”"RETAINED LIABILITIES").

Retained Liabilities. Notwithstanding anything in Except as provided under Section 3.1, neither Purchaser nor Purchaser Sub assumes or agrees to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement to or any Collateral Agreement or as a result of the contraryconsummation of the transactions contemplated herein and therein, Purchaser shall not assume, and shall be deemed not to have assumed, or to have agreed to pay, satisfy, discharge or perform, any Liabilities Liability of Seller (or the Businessany predecessor owner of all or part of its business and assets), except as specifically provided in Section 2.3(a). All other liabilitiesor any of its Affiliates of whatever nature, known or unknown, contingent or otherwise shall remain otherwise, whether presently in existence or arising hereafter, all such Liabilities not being assumed being herein referred to as the obligations of Seller"Retained Liabilities". The Retained Liabilities shall be retained by and remain liabilities of Seller and the Retained Liabilities for the purposes of this Agreement shall include all liabilities other than Assumed Liabilities, including but not limited tothe following: (a) any and all liabilities incurred or assumed (i) expenditures that relate solely to the period prior to the Closing Date relating to current or former employees of included on invoices received by Seller or Purchaser, and (ii) if, applicable, the Seller's Pro-rated Portion of any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case Straddle Period Expenses as specifically provided in Schedule 2.3(a)Section 3.1(d) above; (b) any and all liabilities or potential liabilities Liabilities in respect of pending the Transferred Assets or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the ClosingSoftware Business, including any indemnification claims relating Software Products sold and any services performed by Seller or its Affiliates, that arise out of or relate to this Agreement or the Transactions, including, without limitation, period before the litigation identified on Schedule 4.21Closing Date; (c) Taxes attributable to the Assets or the operations or the income any Indebtedness of Seller or any of its Affiliates (whether or not relating to the Software Business); (d) any Liability between Seller Group and any Affiliate of Seller; (e) except to the extent expressly provided in Section 8.6(c) or Section 8.6(d), any Employment Costs and Liabilities that arise out of or relate to the period prior to the Closing Date, including any Liabilities incurred as a result of the execution and performance of this Agreement by Seller; (f) any Liability for any Pre-Taxes of Seller or any of its Affiliates, whether or not related to the Software Business, the Transferred Assets, or the sale of the Transferred Assets to Purchaser, and arising before or on the Closing Tax PeriodDate; (g) all Liabilities arising out of, under or in connection with any Excluded Contracts and, with respect to Assigned Contracts, Liabilities in respect of a breach by or default of Seller or its Affiliates accruing under the Assigned Contracts with respect to any period before the Closing Date; (h) all Liabilities in respect of any pending or threatened Claims arising out of, relating to or otherwise in respect of (i) the Transferred Assets or the Software Business to the extent such Claim relates to any periods occurring on or prior to the Closing Date and (ii) any Excluded Assets; (i) any Liability with respect to the Excluded Assets; and (dj) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action Liabilities relating to products manufactured amounts required to be paid by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”)hereunder.

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser Seller shall not assumeretain, and shall continue to be deemed not to have assumedresponsible after the Closing Date for, and shall hold Buyer and the Buyer Indemnified Parties harmless against, the "RETAINED LIABILITIES", which term shall mean the liabilities and obligations which at any time arise out of the following, and which shall specifically exclude any and all of the Assumed Liabilities of Seller or the Business, except as specifically provided set forth in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to2.3: (a) all of the liabilities and obligations (whether or not known, suspected, asserted or claimed at the Closing Date or at any time theretofore or thereafter, whether or not reflected or provided for, or required to be reflected or provided for, on a balance sheet of the Business and whether fixed, liquidated, unliquidated, absolute, contingent or otherwise) which relate to or arise out of the Assets, the Business or any of its operations arising prior to the Closing Date, or arising from actions taken or omitted to be taken prior to the Closing Date, excluding in all liabilities incurred or assumed events any Assumed Liabilities (including the Assumed Returned Inventory Liabilities), but including, without limitation, (i) any warranty claims made by third parties in connection with sales of the inventory of the Business prior to the Closing Date and any amounts owed pursuant to received but unpaid purchase orders, and (ii) liabilities and obligations relating to current or former employees of Seller or any Plan, including any accrued benefits inventory of the current or former employees of Seller payable on or Business sold prior to the Closing Date but returned by the purchaser(s) thereof after the Closing Date except to the extent in each case as specifically provided in Schedule 2.3(a)excess of the Assumed Returned Inventory Liabilities; (b) any and all liabilities product liability or potential liabilities in respect similar claim for injury to person or property, regardless of pending when made or threatened litigation brought asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by Seller, or alleged to have been made by Seller, or which is imposed or ascribed to be brought imposed by operation of law, in respect connection with any service performed or product sold or leased by or on behalf of events, circumstances Seller on or facts occurring prior to the ClosingClosing Date, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, any claim relating to any product delivered in connection with the litigation identified on Schedule 4.21performance of such service and any claim seeking recovery for consequential damage, lost services or income); (c) any liability or obligation under or in connection with the Excluded Assets; (d) except as otherwise provided in Section 6.4, any liability or obligation arising prior to the Closing Date to any Business Employees, agents or independent contractors of Seller, whether or not employed by Buyer after the Closing, or under any Business Employee Benefit Plan with respect thereto, except accrued vacation time of Hired Employees (it being understood that, pursuant to Section 6.4(d), Buyer shall indemnify Seller, and hold Seller harmless, with respect to violations, if any, by Buyer of any Employment Laws with respect to the Hired Employees); (e) any liability or obligation of Seller arising or incurred in connection with the negotiation, preparation or execution of this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses of counsel and other experts, except that Buyer has agreed to bear the expenses and fees of Seller's Accountant in connection with the Inventory and the audit of Seller's 1996 and 1997 financial statements; and (i) all Taxes attributable to of, or relating to, the Assets or the operations or the income of Seller or any Seller Group Business for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating periods ending prior to products manufactured by Seller on or before the Closing Date and shipped all income Taxes imposed on Seller or any Affiliate of Seller as a consequence of the transactions contemplated by this Agreement, and (ii) with respect to customers on the current tax period, all Taxes of, or before relating to, the Assets or the Business accrued prior to the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities (collectively, the “Retained Liabilities”)as determined on a pro rata basis as set forth in Section 7.4.

Retained Liabilities. Notwithstanding anything Except as specifically set forth in this Agreement to the contraryAgreement, Purchaser Buyer shall not assume, and shall be deemed not to have assumedor become obligated with respect to, any Liabilities obligations or liabilities of Seller or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise (and Seller shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilitiesunconditionally liable therefor), including but not limited to: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosed, whether known or unknown, whether fixed or contingent, other than the Assumed Liabilities following (collectively, the “Retained Liabilities”): (a) obligations of Seller now existing or which may arise before the Closing with respect to any accounts payable or other payables; (b) obligations of Seller now existing or which may hereafter arise under, by reason of, or in connection with the Purchased Assets before the Closing; (c) obligations arising before the Closing of any term, covenant, or provision of any Plan, Contract, Lease, or other agreement; (d) obligations of Seller now existing or that hereafter may arise under, by reason of, or in connection with any Retained Asset; (e) obligations of Seller now existing or that hereafter may exist by reason of or in connection with any alleged misfeasance or malfeasance by Seller in the conduct of Seller’s Farming Operations, including any tort liability before the Closing; (f) obligations of Seller incurred in connection with or relating to the transfer of the Purchased Assets under this Agreement, including any federal, state, or local income, sales, or other tax incurred by reason of said transfer, all of which shall be the sole responsibility of Seller; (g) any obligation of Seller for federal, state, local, or foreign income or other tax liability attributable to Seller’s ownership of the Purchased Assets or otherwise related to Farming Operations before the Closing; (h) any liabilities or obligations resulting from any litigation or claim or dispute, regardless of whether such litigation or claim or dispute commences before or after the Closing, arising from Seller’s operation of the Purchased Assets or other events occurring before the Closing; (i) any and all liabilities incurred by Seller in connection with the negotiation, execution or performance of this Agreement (including all legal, accounting, brokers, finders, and other professional fees and expenses); (j) any and all liabilities relating to indebtedness for borrowed money; and (k) any and all liabilities incurred by Seller from and after the Closing.

Retained Liabilities. Notwithstanding anything in this Agreement to the contrary, Purchaser shall not assume, assume and shall be deemed not to have assumedno liability or obligation for, any Liabilities obligations, commitments or liabilities of Seller Good Earth or the Business, except as specifically provided in Section 2.3(a). All other liabilities, known or unknown, contingent or otherwise shall remain the obligations of Seller. Retained Liabilities shall include all liabilities other than Assumed Liabilities, including but not limited to: (a) any and all liabilities incurred or assumed prior to the Closing Date relating to current or former employees of Seller or any Plan, including any accrued benefits of the current or former employees of Seller payable on or after the Closing Date except in each case as specifically provided in Schedule 2.3(a); (b) any and all liabilities or potential liabilities in respect of pending or threatened litigation brought or to be brought in respect of events, circumstances or facts occurring prior to the Closing, including any indemnification claims relating to this Agreement or the Transactions, including, without limitation, the litigation identified on Schedule 4.21; (c) Taxes attributable to the Assets or the operations or the income of Seller or any Seller Group for any Pre-Closing Tax Period; and (d) Any and all claims (including product liability claims), counterclaims, offsets, defenses or causes of action relating to products manufactured by Seller on or before the Closing Date and shipped to customers on or before the Closing Date. As between Seller and Purchaser, it is understood that Seller shall be solely and exclusively liable with respect to all Liabilities of Seller and the Business, whether disclosed or undisclosedeFleets, whether known or unknown, whether accrued or not accrued, fixed or contingent, including but not limited to (a) costs and expenses of Good Earth and eFleets incurred in the negotiation of this Agreement and carrying out the transactions contemplated hereby, including any finder, banker, banker and legal fees; and (b) obligations, commitments or liabilities of Good Earth or eFleets arising under or from or relating to (i) any contract or purchase order; (ii) any Taxes, including without limitation, Taxes attributable to Good Earth’s business; (iii) any litigation, arbitration, investigation, proceeding or claim pertaining to the Purchased Collateral, to the extent based on a cause of action arising prior to the Closing, whether such litigation, arbitration, investigation, proceeding or claim commences before or after the Closing; (iv) any litigation, arbitration, investigation, proceeding or claim pertaining to Good Earth or Good Earth’s business, to the extent based on a cause of action arising at any time, whether such litigation, arbitration, investigation, proceeding or claim commences before, on or after the Closing; (v) Good Earth’s employees or other than service providers, including without limitation, provision of benefits or payment for employment or services, paid time off or severance; (vi) Good Earth’s accounts payable or amounts owing to vendors, licensors, creditors or other Persons; and (vii) the Assumed Liabilities Excluded Assets (collectively, the “Retained Liabilities”). All Retained Liabilities are Excluded Liabilities. For purposes of this Agreement, “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or governmental entity; and “Taxes” means any federal, state, county, local or foreign taxes, charges, fees, levies, or other assessments, including but not limited to all net income, gross income, sales and use, transfer, gains, profits, excise, franchise, real and personal property, gross receipt, capital stock, production, business and occupation, disability, employment, payroll, license, estimated, stamp, custom duties, severance or withholding taxes or charges imposed by a governmental entity, and includes any interest and penalties (civil or criminal) on or additions to any such taxes.