Common use of Closing Date Liabilities Clause in Contracts

Closing Date Liabilities. (a) Seller and Shareholders represent and warrant that, to the best of Seller's and Shareholders' knowledge and belief after diligent inquiry, all of Seller's liabilities, as of the date hereof are listed on the Schedule of Liabilities attached hereto as Schedule 5(a) (the "LIMITED LIABILITIES"). For purposes of this Agreement "LIABILITIES" shall mean and include all claims, lawsuits, liabilities, obligations or debts of any kind or nature whatsoever, whether absolute, accrued, due, direct or indirect, contingent or liquidated, matured or unmatured, joint or several, whether or not for a sum certain, whether for the payment of money or for the performance or observance of any obligation or condition, and whether or not of a type which would be reflected as a liability on a balance sheet (including, without limitation, federal, state and local taxes of any nature) in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including without limitation, malpractice or other tort claims, claims for breach of contract, any claims of any kind asserted by patients, former patients, employees of Seller or any other party that are based on acts or omissions by Seller occurring on or before the date hereof, amounts due or that may become due in connection with the participation of Seller in the Medicare or Medicaid programs or due to any other health care reimbursement or payment intermediary, or that may be due by Seller to any other third party payor, accounts payable, notes payable, trade payables, lease obligations, indebtedness for borrowed money, accrued interest, and contractual obligations. Seller and Shareholders acknowledge that the Purchase Price for the Assets is based on the accuracy of Seller's and Shareholders' representations and warranties contained in this Agreement, including, but not limited to, Seller's and Shareholders' representations and warranties contained in this paragraph 5(a). Buyer will not assume any, and Seller and Shareholders shall remain liable for each, liability of Seller existing on the Closing Date, including, without limitation, any Limited Liabilities, and any liabilities that Seller may have by reason of its ownership in any of the JVs (as defined in paragraph 14(a), below), including without limitation, Mohawk Valley Home Care, L.L.C. (the "EXCLUDED LIABILITIES"); provided, however, notwithstanding the foregoing, Buyer will assume at Closing such liabilities that are incurred between the date hereof and the Closing Date (i) in the ordinary course of business consistent with past practice, or (ii) as a direct result of Buyer's actions under the Management Agreement, or (iii) contractual obligations (under assumed contracts or contracts entered into after the date hereof in compliance with this Agreement) (the "ASSUMED LIABILITIES").

Closing Date Liabilities. (a) Seller and Shareholders Shareholder represent and warrant that, to the best of Seller's and Shareholders' Shareholder's knowledge and belief after diligent inquiry, all of Seller's liabilities, as of the date hereof Closing Date are listed on the Schedule of Liabilities attached hereto as Schedule 5(a) (the "LIMITED LISTED LIABILITIES"). For purposes of this Agreement "LIABILITIES" shall mean and include all claims, lawsuits, liabilities, obligations or debts of any kind or nature whatsoever, whether absolute, accrued, due, direct or indirect, contingent or liquidated, matured or unmatured, joint or several, whether or not for a sum certain, whether for the payment of money or for the performance or observance of any obligation or condition, whether or not asserted as of the date hereof, and whether or not of a type which would be reflected as a liability on a balance sheet (including, without limitation, federal, state and local taxes of any nature) in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including without limitation, any liabilities relating to any Excluded Assets, malpractice or other tort claims, claims for breach of contract, any claims of any kind asserted by patients, former patients, employees and former employees of Seller or any other party that are based on acts or omissions by Seller occurring on or before the date hereofClosing Date, amounts due or that may become due in connection with the participation of Seller in the Medicare or Medicaid programs or due to any other health care reimbursement or payment intermediary, or that may be due by Seller to any other third party payor, accounts payable, notes payable, trade payables, lease obligations, indebtedness for borrowed money, accrued interest, and contractual obligations. Seller and Shareholders Shareholder acknowledge that the Purchase Price for the Assets is based on the accuracy of Seller's and Shareholders' Shareholder's representations and warranties contained in this Agreement, including, but not limited to, Seller's and Shareholders' Shareholder's representations and warranties contained in this paragraph 5(a). Without limiting the generality of the foregoing, Buyer will not assume any, and Seller and Shareholders shall remain liable for each, liability of Seller arising out of any facts, circumstances, matter or occurrences existing on the Closing Date, including, without limitation, any Limited Liabilities, and any liabilities that Seller may have by reason of its ownership in any of the JVs (as defined in paragraph 14(a), below), including without limitation, Mohawk Valley Home Care, L.L.C. (the "EXCLUDED LIABILITIES"); provided, however, notwithstanding the foregoing, Buyer will assume at Closing such liabilities that are incurred between the date hereof and or prior to the Closing Date (i) in the ordinary course of business consistent with past practice, whether or (ii) as a direct result of Buyer's actions under the Management Agreement, or (iii) contractual obligations (under assumed contracts or contracts entered into after the date hereof in compliance with this Agreementnot known) (the "ASSUMED CLOSING DATE LIABILITIES").

Closing Date Liabilities. (aA) Seller The Shareholders and Shareholders Guarantors jointly and severally represent and warrant that, to the best of Seller's and Shareholders' their knowledge and belief after diligent inquiry, all liabilities of Seller's liabilities, the Company or the Subsidiary as of the date hereof Economic Change Date are listed on the Schedule of Liabilities attached hereto as Schedule 5(a) 2.6 (the "LIMITED LIABILITIES"a). For purposes of this Agreement "LIABILITIES" shall mean and include all claims, lawsuits, liabilities, obligations or debts of any kind or nature whatsoever, whether absolute, accrued, due, direct or indirect, contingent or liquidated, matured or unmatured, joint or several, whether or not for a sum certain, whether for the payment of money or for the performance or observance of any obligation or condition, and whether or not of a type which would be reflected as a liability on a balance sheet (including, without limitation, federal, state and local taxes of any nature) in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including without limitation, malpractice or other tort claimsclaims asserted against the Company or the Subsidiary, claims for breach of contract, any claims of any kind asserted by patients, former patients, employees or former employees of Seller the Company or the Subsidiary or any other party that are based on acts or omissions by Seller occurring on or before the date hereofClosing Date, amounts due or that may become due in connection with the participation of Seller the Company or the Subsidiary in the Medicare or Medicaid programs or due to any other health care reimbursement or payment intermediary, or that may be due by Seller the Company or the Subsidiary to any other third party payor, accounts payable, notes payable, trade payables, lease obligations, indebtedness for borrowed money, accrued interest, and contractual obligations. Seller The Shareholders and Shareholders Guarantors acknowledge that the Purchase Price amount of the Merger Consideration for the Assets Company Shares is based on the accuracy of Seller's and Shareholders' the representations and warranties of the Shareholders and the Guarantors contained in this Agreement, including, but not limited to, Seller's and Shareholders' the representations and warranties contained in this paragraph 5(a). Buyer will not assume any, and Seller and Shareholders shall remain liable for each, liability of Seller existing on the Closing Date, including, without limitation, any Limited Liabilities, and any liabilities that Seller may have by reason of its ownership in any of the JVs (as defined in paragraph 14(a), below), including without limitation, Mohawk Valley Home Care, L.L.C. (the "EXCLUDED LIABILITIES"); provided, however, notwithstanding the foregoing, Buyer will assume at Closing such liabilities that are incurred between the date hereof and the Closing Date (i) in the ordinary course of business consistent with past practice, or (ii) as a direct result of Buyer's actions under the Management Agreement, or (iii) contractual obligations (under assumed contracts or contracts entered into after the date hereof in compliance with this Agreement) (the "ASSUMED LIABILITIES"Section 2.6(a).

Closing Date Liabilities. (a) Seller and Shareholders represent and warrant that, to the best of Seller's and Shareholders' knowledge and belief after diligent inquiry, all of Seller's liabilities, as of the date hereof Closing Date are listed on the Schedule of Liabilities attached hereto as Schedule 5(a4(a) (the "LIMITED LISTED LIABILITIES"). For purposes of this Agreement "LIABILITIES" shall mean and include all claims, lawsuits, liabilities, obligations or debts of any kind or nature whatsoever, whether absolute, accrued, due, direct or indirect, contingent or liquidated, matured or unmatured, joint or several, whether or not for a sum certain, whether for the payment of money or for the performance or observance of any obligation or condition, whether or not asserted as of the date hereof, and whether or not of a type which would be reflected as a liability on a balance sheet (including, without limitation, federal, state and local taxes of any nature) in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including without limitation, any liabilities relating to any Excluded Assets, malpractice or other tort claims, claims for breach of contract, any claims of any kind asserted by patients, former patients, employees and former employees of Seller or any other party that are based on acts or omissions by Seller occurring on or before the date hereofClosing Date, amounts due or that may become due in connection with the participation of Seller in the Medicare or Medicaid programs or due to any other health care reimbursement or payment intermediary, or that may be due by Seller to any other third party payor, accounts payable, notes payable, trade payables, lease obligations, indebtedness for borrowed money, accrued interest, and contractual obligations. Seller and Shareholders acknowledge that the Purchase Price for the Assets is based on the accuracy of Seller's and Shareholders' representations and warranties contained in this Agreement, including, but not limited to, Seller's and Shareholders' representations and warranties contained in this paragraph 5(a4(a). Without limiting the generality of the foregoing, Buyer will not assume any, and Seller and Shareholders shall remain liable for each, liability of Seller arising out of any facts, circumstances, matters or occurrences existing on the Closing Date, including, without limitation, any Limited Liabilities, and any liabilities that Seller may have by reason of its ownership in any of the JVs (as defined in paragraph 14(a), below), including without limitation, Mohawk Valley Home Care, L.L.C. (the "EXCLUDED LIABILITIES"); provided, however, notwithstanding the foregoing, Buyer will assume at Closing such liabilities that are incurred between the date hereof and or prior to the Closing Date (i) in the ordinary course of business consistent with past practice, whether or (ii) as a direct result of Buyer's actions under the Management Agreement, or (iii) contractual obligations (under assumed contracts or contracts entered into after the date hereof in compliance with this Agreementnot known) (the "ASSUMED CLOSING DATE LIABILITIES").

Closing Date Liabilities. (a) Seller and the Shareholders represent and warrant that, to the best of Seller's and Shareholders' knowledge and belief after diligent inquiry, all of Seller's liabilities, as of the date hereof Closing Date are listed on the Schedule of Liabilities attached hereto as Schedule 5(a) (the "LIMITED LIABILITIES"4(a). For purposes of this Agreement "LIABILITIES" shall mean and include all claims, lawsuits, liabilities, obligations or debts of any kind or nature whatsoever, whether absolute, accrued, due, direct or indirect, contingent or liquidated, matured or unmatured, joint or several, whether or not for a sum certain, whether for the payment of money or for the performance or observance of any obligation or condition, and whether or not of a type which would be reflected as a liability on a balance sheet (including, without limitation, federal, state and local taxes of any nature) in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including without limitation, malpractice or other tort claims, claims for breach of contract, any claims of any kind asserted by patients, former patients, employees and former employees of Seller or any other party that are based on acts or omissions by Seller occurring on or before the date hereofClosing Date, amounts due or that may become due in connection with the participation of Seller in the Medicare or Medicaid programs or due to any other health care reimbursement or payment intermediary, or that may be due by Seller to any other third party payor, accounts payable, notes payable, trade payables, lease obligations, indebtedness for borrowed money, accrued interest, and contractual obligations. Seller and Shareholders acknowledge each Shareholder acknowledges that the Purchase Price for the Assets is based on the accuracy of Seller's and Shareholders' representations and warranties contained in this Agreement, including, but not limited to, Seller's and Shareholders' representations and warranties contained in this paragraph 5(a4(a). Without limiting the generality of the foregoing, Buyer will not assume any, and Seller and Shareholders shall remain liable for each, liability of Seller arising out of any facts, circumstances, matter or occurrences existing on the Closing Date, including, without limitation, any Limited Liabilities, and any liabilities that Seller may have by reason of its ownership in any of the JVs (as defined in paragraph 14(a), below), including without limitation, Mohawk Valley Home Care, L.L.C. (the "EXCLUDED LIABILITIES"); provided, however, notwithstanding the foregoing, Buyer will assume at Closing such liabilities that are incurred between the date hereof and or prior to the Closing Date (i) in the ordinary course of business consistent with past practice, whether or (ii) as a direct result of Buyer's actions under the Management Agreement, not known or (iii) contractual obligations (under assumed contracts or contracts entered into after the date hereof in compliance with this Agreementdisclosed) (the "ASSUMED CLOSING DATE LIABILITIES").

Closing Date Liabilities. (a) Seller and Shareholders represent and warrant that, to the best of Seller's and Shareholders' each Shareholder's knowledge and belief after diligent inquiry, all of Seller's liabilitiesliabilities (except for the Closing Assumed Lease Payables, the Real Estate Leases, the Employee Benefits Payables and the Assumed Liabilities) as of the date hereof Closing Date are listed on the Schedule of Liabilities attached hereto as Schedule 5(a4(a) (the "LIMITED LISTED LIABILITIES"). For purposes of this Agreement "LIABILITIES" shall mean and include all claims, lawsuits, liabilities, obligations or debts of any kind or nature whatsoever, whether absolute, accrued, due, direct or indirect, contingent or liquidated, matured or unmatured, joint or several, whether or not for a sum certain, whether for the payment of money or for the performance or observance of any obligation or condition, whether or not asserted as of the date hereof, and whether or not of a type which would be reflected as a liability on a balance sheet (including, without limitation, federal, state and local taxes of any nature) in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including without limitation, any liabilities relating to any Excluded Assets (including, without limitation, the Excluded Lease), malpractice or other tort claims, claims for breach of contract, any claims of any kind asserted by patients, former patients, employees and former employees of Seller or any other party that are based on acts or omissions by Seller occurring on or before the date hereofClosing Date, amounts due or that may become due in connection with the participation of Seller in the Medicare or Medicaid programs or due to any other health care reimbursement or payment intermediary, or that may be due by Seller to any other third party payor, accounts payable, notes payable, trade payables, lease obligations, indebtedness for borrowed money, accrued interest, and contractual obligationsobligations other than the Closing Assumed Lease Payables, the Real Estate Leases, the Employee Benefits Payables and the Assumed Liabilities. Seller and Shareholders each Shareholder acknowledge that the Purchase Price for the Assets is based on the accuracy of Seller's and Shareholders' each Shareholder's representations and warranties contained in this Agreement, including, but not limited to, Seller's and Shareholders' each Shareholder's representations and warranties contained in this paragraph 5(a4(a). Without limiting the generality of the foregoing, Buyer will not assume any, and Seller and Shareholders shall remain liable for each, liability of Seller arising out of any facts, circumstances, matter or occurrences existing on the Closing Date, including, without limitation, any Limited Liabilities, and any liabilities that Seller may have by reason of its ownership in any of the JVs (as defined in paragraph 14(a), below), including without limitation, Mohawk Valley Home Care, L.L.C. (the "EXCLUDED LIABILITIES"); provided, however, notwithstanding the foregoing, Buyer will assume at Closing such liabilities that are incurred between the date hereof and or prior to the Closing Date (iwhether or not known) ("CLOSING DATE LIABILITIES"), other than the Closing Assumed Lease Payables, the Real Estate Leases, the Employee Benefits Payables and the Assumed Liabilities. (b) Without limiting the generality of the provisions of subparagraph (a) above, Buyer shall not assume the Contracts (as hereinafter defined in paragraph 13(b)), if any, set forth on Schedule 4(b), or any liabilities with respect thereto, and except as provided in subsection (c) below, Buyer shall not, in any case, assume any liabilities under any Contracts (whether or not such Contracts are assumed by Buyer) to the extent such liabilities arise out of facts or circumstances in existence, or obligations to be satisfied, on or prior to the Closing Date. (c) At Closing, Buyer shall assume the Closing Assumed Lease Payables, the Real Estate Leases, the Employee Benefits Payables and the Assumed Liabilities and shall satisfy the same in the ordinary course of business consistent with past practice, or (ii) as a direct result of Buyer's actions under the Management Agreement, or (iii) contractual obligations (under assumed contracts or contracts entered into same shall become due and payable from and after the date hereof in compliance Closing; provided, however, that Buyer shall fully satisfy the outstanding obligations with this Agreement) (respect to the Closing Assumed Lease Payables by not later than August 31, 1998. The Closing Assumed Lease Payables, the Real Estate Leases, the Employee Benefit Payables and the Assumed Liabilities shall not constitute Closing Date Liabilities or Listed Liabilities. The "ASSUMED LIABILITIES"" shall be those liabilities of Seller set forth on Schedule 4(c).