Common use of Assumed and Retained Liabilities Clause in Contracts

Assumed and Retained Liabilities. 4.1 Seller and its Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for and shall be held harmless and indemnified by Seller and its Affiliates with respect to any of the Liabilities of Seller and/or its Affiliates created or existing on or prior to the Closing Date including, but not limited to the following (the “Retained Liabilities”): (a) any and all Liabilities arising out of or in connection with the conduct or ownership of the Product Line on or prior to the Closing Date including but not limited to those matters disclosed in Exhibit 11.2.9(a); (b) any and all Liabilities relating to Products of the Product Line delivered and invoiced to third parties (other than Seller and/or its Affiliates) on or prior to the Closing Date; (c) all payables accrued on or prior to the Closing Date; (d) any and all Liabilities not explicitly assumed by Purchaser and/or its Affiliates under this Agreement or the Exhibits attached hereto; (e) any and all Taxes attributable to the conduct or ownership of the Product Line by Seller and/or its Affiliates on or prior to the Closing Date and related to the time period on or before the Closing Date; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISK. (f) any and all Liabilities arising under any transferred Contract and those Contracts subject to the provision of Article 2.1.9 with respect to a breach or default under such transferred Contract committed on or prior to the Closing Date; (g) any and all Liabilities of Seller and/or its Affiliates required by the terms of any transferred Contract to be performed on or prior to the Closing Date; (h) any and all Liabilities resulting from, or relating to, litigation or proceedings relating to events on or prior to the Closing Date; (i) any and all Liabilities related to the employees of Seller and/or its Affiliates; and (j) any and all Liabilities related to the ownership and operation of the Optioned Assets or the property described in the Ground Lease. 4.2 Purchaser shall be responsible for paying, performing and discharging when due, and Seller shall not have any responsibility for and shall be held harmless and indemnified by Purchaser with respect to the following Liabilities (the “Assumed Liabilities”): (a) Any and all Liabilities arising out of or in connection with the conduct or ownership of the Product Line following the Closing Date, except as explicitly provided otherwise in this Agreement or the Exhibits thereto; (b) any and all Taxes owed by Purchaser and/or its Affiliates attributable to the conduct or ownership of the Product Line after the Closing Date and relating to the time period after the Closing Date; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISK. (c) any and all Liabilities arising under any transferred Contract with respect to a breach or default under such transferred Contract committed after the Closing Date; (d) any and all Liabilities required by the terms of any transferred Contract to be performed after the Closing Date; and (e) any and all other Liabilities expressly assumed by Purchaser pursuant to other provisions in this Agreement. For the avoidance of doubt, the Assumed Liabilities shall exclude any and all liabilities and obligations not expressly assumed by Purchaser under this Agreement. 4.3 Seller shall hold harmless Purchaser from and indemnify Purchaser against any and all Liabilities other than the Assumed Liabilities in particular from and against Liabilities which are assumed by Purchaser by operation of law. 4.4 In the event Purchaser exercises its option pursuant to Article 3.2, the provisions of Section 4.4.1 and 4.4.2 shall apply after the Option Closing Date. 4.4.1. Seller and/or its Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser and/or its Affiliates shall not assume or have any responsibility for, and shall be held harmless and indemnified by Seller and/or its Affiliates with respect to, any of the Liabilities of Seller and/or its Affiliates arising out of the ownership or operation of the T/C Site created or existing on or prior to the Option Closing Date (the “Option Retained Liabilities”). CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISK.

Assumed and Retained Liabilities. 4.1 Buyer shall Indemnify Seller from and its Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for and shall be held harmless and indemnified by Seller and its Affiliates with respect to any of the Liabilities of Seller and/or its Affiliates created or existing on or prior to the Closing Date including, but not limited to the following (the “Retained Liabilities”): (a) against any and all Claims that Seller incurs relating to the Hotel arising on or after the Closing, or by reason of any obligation or liability which is assumed by Buyer pursuant to this Agreement, including, without limitation (A) obligations accruing under the Hotel Management Agreement after Closing, (B) obligations accruing under the Assumed Contracts after Closing, (C) the Hotel Payables to the extent credited to Buyer, (D) Reservations made in the Ordinary Course, (E) obligations accruing under the Leases after Closing, (F) obligations accruing under the Ground Lease after Closing, (G) any obligation or liability for which Buyer has received a credit under Section 8 or Section 11, and (H) liability arising from Buyer’s failure to pay any Closing cost allocated to it under this Agreement. Seller shall Indemnify Buyer from and against any and all Claims which Buyer incurs by reason of any obligation or liability which is retained by Seller pursuant to this Agreement, including, without limitation and (except to the extent that Buyer has received a credit for such liability or obligation under Section 8 or Section 11): (i) the Employee Liabilities accrued or occurring prior to Closing, including, without limitation any workmans compensation claims ; (ii) any disputed payables not adjusted for under Section 8 or Section 11; and (iii) any obligations or liabilities accruing prior to Closing or arising out of events occurring prior to Closing including those arising under the Hotel Management Agreement, the Ground Lease, the Leases, the Assumed Contracts, Real Estate Taxes, and Operational Taxes (excluding in all events any liabilities or in connection with obligations (1) relating to the conduct release or ownership other presence of the Product Line Hazardous Substances on or prior about the Hotel or (2) for which Seller has been otherwise released pursuant to the Closing Date including but not limited to those matters disclosed in Exhibit 11.2.9(a); (b) any and all Liabilities relating to Products of the Product Line delivered and invoiced to third parties (other than Seller and/or its Affiliates) on or prior to the Closing Date; (c) all payables accrued on or prior to the Closing Date; (d) any and all Liabilities not explicitly assumed by Purchaser and/or its Affiliates under this Agreement or the Exhibits attached hereto; (e) any and all Taxes attributable to the conduct or ownership of the Product Line by Seller and/or its Affiliates on or prior to the Closing Date and related to the time period on or before the Closing Date; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISKDocuments). (f) any and all Liabilities arising under any transferred Contract and those Contracts subject to the provision of Article 2.1.9 with respect to a breach or default under such transferred Contract committed on or prior to the Closing Date; (g) any and all Liabilities of Seller and/or its Affiliates required by the terms of any transferred Contract to be performed on or prior to the Closing Date; (h) any and all Liabilities resulting from, or relating to, litigation or proceedings relating to events on or prior to the Closing Date; (i) any and all Liabilities related to the employees of Seller and/or its Affiliates; and (j) any and all Liabilities related to the ownership and operation of the Optioned Assets or the property described in the Ground Lease. 4.2 Purchaser shall be responsible for paying, performing and discharging when due, and Seller shall not have any responsibility for and shall be held harmless and indemnified by Purchaser with respect to the following Liabilities (the “Assumed Liabilities”): (a) Any and all Liabilities arising out of or in connection with the conduct or ownership of the Product Line following the Closing Date, except as explicitly provided otherwise in this Agreement or the Exhibits thereto; (b) any and all Taxes owed by Purchaser and/or its Affiliates attributable to the conduct or ownership of the Product Line after the Closing Date and relating to the time period after the Closing Date; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISK. (c) any and all Liabilities arising under any transferred Contract with respect to a breach or default under such transferred Contract committed after the Closing Date; (d) any and all Liabilities required by the terms of any transferred Contract to be performed after the Closing Date; and (e) any and all other Liabilities expressly assumed by Purchaser pursuant to other provisions in this Agreement. For the avoidance of doubt, the Assumed Liabilities shall exclude any and all liabilities and obligations not expressly assumed by Purchaser under this Agreement. 4.3 Seller shall hold harmless Purchaser from and indemnify Purchaser against any and all Liabilities other than the Assumed Liabilities in particular from and against Liabilities which are assumed by Purchaser by operation of law. 4.4 In the event Purchaser exercises its option pursuant to Article 3.2, the provisions of Section 4.4.1 and 4.4.2 shall apply after the Option Closing Date. 4.4.1. Seller and/or its Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser and/or its Affiliates shall not assume or have any responsibility for, and shall be held harmless and indemnified by Seller and/or its Affiliates with respect to, any of the Liabilities of Seller and/or its Affiliates arising out of the ownership or operation of the T/C Site created or existing on or prior to the Option Closing Date (the “Option Retained Liabilities”). CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISK.

Assumed and Retained Liabilities. 4.1 Buyer shall Indemnify Seller and its Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for and shall be held harmless and indemnified by Seller and its Affiliates with respect to any of the Liabilities of Seller and/or its Affiliates created or existing on or prior to the Closing Date including, but not limited to the following (the “Retained Liabilities”): (a) any and all Liabilities arising out of or in connection with the conduct or ownership of the Product Line on or prior to the Closing Date including but not limited to those matters disclosed in Exhibit 11.2.9(a); (b) any and all Liabilities relating to Products of the Product Line delivered and invoiced to third parties (other than Seller and/or its Affiliates) on or prior to the Closing Date; (c) all payables accrued on or prior to the Closing Date; (d) any and all Liabilities not explicitly assumed by Purchaser and/or its Affiliates under this Agreement or the Exhibits attached hereto; (e) any and all Taxes attributable to the conduct or ownership of the Product Line by Seller and/or its Affiliates on or prior to the Closing Date and related to the time period on or before the Closing Date; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISK. (f) any and all Liabilities arising under any transferred Contract and those Contracts subject to the provision of Article 2.1.9 with respect to a breach or default under such transferred Contract committed on or prior to the Closing Date; (g) any and all Liabilities of Seller and/or its Affiliates required by the terms of any transferred Contract to be performed on or prior to the Closing Date; (h) any and all Liabilities resulting from, or relating to, litigation or proceedings relating to events on or prior to the Closing Date; (i) any and all Liabilities related to the employees of Seller and/or its Affiliates; and (j) any and all Liabilities related to the ownership and operation of the Optioned Assets or the property described in the Ground Lease. 4.2 Purchaser shall be responsible for paying, performing and discharging when due, and Seller shall not have any responsibility for and shall be held harmless and indemnified by Purchaser with respect to the following Liabilities (the “Assumed Liabilities”): (a) Any and all Liabilities arising out of or in connection with the conduct or ownership of the Product Line following the Closing Date, except as explicitly provided otherwise in this Agreement or the Exhibits thereto; (b) any and all Taxes owed by Purchaser and/or its Affiliates attributable to the conduct or ownership of the Product Line after the Closing Date and relating to the time period after the Closing Date; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISK. (c) any and all Liabilities arising under any transferred Contract with respect to a breach or default under such transferred Contract committed after the Closing Date; (d) any and all Liabilities required by the terms of any transferred Contract to be performed after the Closing Date; and (e) any and all other Liabilities expressly assumed by Purchaser pursuant to other provisions in this Agreement. For the avoidance of doubt, the Assumed Liabilities shall exclude any and all liabilities and obligations not expressly assumed by Purchaser under this Agreement. 4.3 Seller shall hold harmless Purchaser from and indemnify Purchaser against any and all Liabilities other than the Assumed Liabilities in particular from and against Liabilities which are (a) Claims that Seller incurs by reason of (A) any obligation or liability that is assumed by Purchaser by operation of law. 4.4 In the event Purchaser exercises its option Buyer pursuant to Article 3.2, the provisions of Section 4.4.1 and 4.4.2 shall apply after the Option Closing Date. 4.4.1. Seller and/or its Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser and/or its Affiliates shall not assume or have this Agreement (including any responsibility for, and shall be held harmless and indemnified by Seller and/or its Affiliates with respect to, any of the Liabilities of Seller and/or its Affiliates Claims arising out of (i) Employee Liabilities required to be borne by Buyer hereunder, (ii) any other lawsuits, administrative proceedings, arbitration proceedings or other legal proceedings affecting or otherwise relating to the Hotel to the extent arising from post-Closing matters or events, or (iii) Buyer’s breach or termination of any Lease or Assumed Contract), and (B) any Closing cost allocated to it under Section 10.4, and (b) liabilities, claims or demands of any kind or nature with respect to the ownership or operation of the T/C Site created Property which arise or existing accrue from and after Closing. Seller shall Indemnify Buyer from and against any and all (a) Claims which Buyer incurs by reason of (i) any obligation or liability that is not assumed by Buyer pursuant to this Agreement (including, without limitation, any Claims arising out of (x) Employee Liabilities required to be borne by Seller hereunder, (y) the legal proceedings described on Exhibit S attached hereto, and (z) any other lawsuits, administrative proceedings, arbitration proceedings or other legal proceedings affecting or otherwise relating to the Hotel to the extent arising from pre-Closing matters or events), and (ii) any Closing cost allocated to it under Section 10.4, and (b) liabilities, claims or demands with respect to the ownership or operation of the Property which arise or accrue prior to the Option Closing Date (the “Option Retained Liabilities”). CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY AN ASTERISKClosing.