Non-Assumption of Liabilities Neither Party shall be liable for the prior, existing or future obligations, liabilities or debts of the other Party.
Limitation of Liabilities IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY SUBLICENSEE OR ANY OTHER ENTITY FOR ANY DAMAGES OR LOSS CAUSED BY DELAY IN DELIVERY OR FURNISHING OF DATA USING THE INTELLECTUAL PROPERTY. IN ADDITION, LICENSOR SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND WHATSOEVER IN EXCESS OF TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00). THE FOREGOING LIMITATIONS SHALL NOT APPLY TO (I) INDEMNIFICATION OBLIGATIONS; (II) ANY CLAIMS FOR PERSONAL INJURY OR DEATH, OR DAMAGE TO PROPERTY; OR (III) ANY CLAIMS BASED UPON LICENSOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (IV) BREACHES OF THE CONFIDENTIALITY OBLIGATIONS.
Assumption of Liabilities Upon the terms and subject to the conditions of this Agreement, Acquisition Subsidiary agrees, effective at the time of Closing, to assume all obligations and liabilities of Seller of any kind, character or description, arising exclusively or primarily out of the conduct of the Business (the "ASSUMED LIABILITIES"), except for the Excluded Liabilities, including, without limitation, the following: (a) Accounts payable which are either disclosed on the Most Recent Balance Sheet or incurred by Seller in the ordinary course of operating the Business between January 1, 2004 and the Closing; (b) Liabilities and obligations related to customer deposits which are either disclosed on the Most Recent Balance Sheet or incurred by Seller in the ordinary course of operating the Business between January 1, 2004 and the Closing; (c) Accrued payroll (including bonuses in the ordinary course of business) and accrued vacation and sick time which are either disclosed on the Most Recent Balance Sheet or incurred in the ordinary course of operating the Business between January 1, 2004 and the Closing; (d) Other accrued liabilities relating to the Business (of the nature included in the Most Recent Balance Sheet in the line item "Other accrued liabilities") which are either disclosed on the Most Recent Balance Sheet or incurred by Seller in the ordinary course of operating the Business between January 1, 2004 and the Closing; (e) Indebtedness to certain related parties of Seller, after giving effect to the transfer of the Excluded Real Property, subject to a mortgage or deed of trust securing the Real Estate Facility, to the holder(s) of such indebtedness in exchange for the cancellation of a portion of such indebtedness (the "RELATED PARTY DEBT"), as more particularly described in SCHEDULE 2.3(e) of the Disclosure Schedule; and (f) Seller's obligations under the Assumed Contracts.
Novation of Liabilities (a) Each Party, at the request of another Party, shall use best efforts to obtain, or to cause to be obtained, any Consent, substitution or amendment required to novate or assign all obligations under Contracts, licenses and other obligations or Liabilities for which a member of such Party’s Group and a member of another Party’s Group are jointly or severally liable and that do not constitute Liabilities of such other Party as provided in this Agreement (such other Party, the “Other Party”), or to obtain in writing the unconditional release of all parties to such arrangements (other than any member of the Group who Assumed or retained such Liability as set forth in this Agreement), so that, in any such case, the members of the applicable Group will be solely responsible for such Liabilities; provided, however, that no Party shall be obligated to pay any consideration therefor to any third party from whom any such Consent, substitution or amendment is requested (unless such Party is fully reimbursed by the requesting Party). (b) If the Parties are unable to obtain, or to cause to be obtained, any such required Consent, release, substitution or amendment, the Other Party or a member of such Other Party’s Group shall continue to be bound by such Contract, license or other obligation that does not constitute a Liability of such Other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party’s Group who Assumed or retained such Liability as set forth in this Agreement (the “Liable Party”) shall, or shall cause a member of its Group to, pay, perform and discharge fully all the obligations or other Liabilities of such Other Party or member of such Other Party’s Group thereunder from and after the Effective Time. The Liable Party shall indemnify each Other Party and hold each of them harmless against any Liabilities (other than Liabilities of such Other Party) arising in connection therewith; provided, that the Liable Party shall have no obligation to indemnify any Other Party with respect to any matter to the extent that such Other Party has engaged in any knowing violation of Law, fraud or misrepresentation in connection therewith. The Other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or to another member of the Liable Party’s Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such Other Party pursuant to this Agreement). If and when any such Consent, release, substitution or amendment shall be obtained or such agreement, lease, license or other rights or obligations shall otherwise become assignable or able to be novated, the Other Party shall promptly Transfer all rights, obligations and other Liabilities thereunder of any member of such Other Party’s Group to the Liable Party or to another member of the Liable Party’s Group without payment of any further consideration and the Liable Party, or another member of such Liable Party’s Group, without the payment of any further consideration, shall Assume such rights and Liabilities. (c) If the Liable Party (i) suffers a downgrade to its senior debt credit rating to below BB (as rated by Standard & Poor’s) or (ii) no longer has its debt securities rated by any nationally recognized credit rating agencies, then, upon the demand of the Other Party, such Liable Party shall be required to post an irrevocable letter of credit or similar security obligation reasonably acceptable to the Other Party in an amount reasonably necessary to provide security to the Other Party for the Liable Party’s obligations pursuant to Section 2.9(b); provided, however, that the foregoing shall not apply with respect to Assumed Tyco Contingent Liability. For the avoidance of doubt, the posting of such a letter of credit or similar security obligation shall in no event relieve the issuing Party’s obligations pursuant to Section 2.9(b), and shall not result in a cap or limitation on such Party’s Liabilities with respect thereto.
Assumption and Exclusion of Liabilities (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Purchaser shall assume and shall agree to pay, perform and discharge the following Liabilities of Parent, the Seller and any of Parent’s other Affiliates (the “Assumed Liabilities”): (i) all Liabilities reflected on the Closing Date Working Capital Statement finally resolved in accordance with Section 2.07(e)(ii), including Workers’ Compensation Liabilities; (ii) all Liabilities of Parent or its Affiliates arising under the contracts and agreements assumed by the Purchaser pursuant to Sections 2.01(a)(x) and (xi) (other than Liabilities or obligations attributable to any failure by Parent or its Affiliates to comply with the terms thereof prior to the Closing Date); (iii) any liabilities relating to a Plan that are to be assumed pursuant to the express terms of Article VI; (iv) solely to the extent provided in Article VIII, Post-Closing Environmental Liabilities, Historical On-Site Environmental Liabilities, and Straddle Environmental Liabilities; (v) all Liabilities assigned to the Purchaser under Article VI; (vi) all accounts and trade payables, in each case to the extent such Liabilities are reflected, or are expressly reserved for, in the Closing Date Working Capital Statement; (vii) all Liabilities that the Purchaser expressly has assumed or agreed to pay, or be responsible for, pursuant to the terms hereof or of any Ancillary Agreement; (viii) all Liabilities of the Seller arising from commitments (in the form of accepted purchase orders), or outstanding quotations, proposals or bids to (A) sell products or (B) purchase or acquire raw materials, components, supplies or services (provided that, in each case, with respect to such commitments, outstanding quotations, proposals or bids arising between the date hereof and the Closing Date, such commitments, outstanding quotations, proposals or bids have been made in accordance with Section 5.01 hereof); (ix) all Taxes for Post-Closing Periods relating to the Purchased Assets or the Business and, without duplication of any Taxes included under Section 2.02(a)(i), any Taxes relating to the Purchased Assets or the Business for a Pre-Closing Period to the extent an amount for any such Tax is set forth as a Liability on the Closing Date Working Capital Statement, in each case, other than Excluded Taxes; and (x) all Workers’ Compensation Liabilities. (b) Notwithstanding subsection (a) above to the contrary, Parent, the Seller and Parent’s other Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and the Purchaser shall not assume or have any responsibility for, all Liabilities as of the Closing other than the Assumed Liabilities (the “Excluded Liabilities”), including: (i) all Liabilities relating to, resulting from, caused by or arising out of, directly or indirectly, the conduct of the Business or any Purchased Assets prior to the Closing Date, except for any Liabilities expressly assumed under Section 2.02(a) and any Liabilities related to the Employee Amounts; (ii) all Excluded Taxes; (iii) all Liabilities arising out of or relating to the Excluded Assets; (iv) except to the extent such are Assumed Liabilities and subject to the provisions set forth in Article VIII, all Environmental Liabilities; provided, however, with respect to Historical Off-Site Environmental Liabilities, such liabilities shall be subject to the procedures set forth in Section 8.07; (v) any Indebtedness of the Business (the “Excluded Indebtedness”); (vi) except for Workers’ Compensation Liabilities, any Liabilities relating to any current or former employees, independent contractors, officers or agents of the Seller other than the Transferred Employees; (vii) except (A) as and to the extent expressly provided in Article VI and (B) for Workers’ Compensation Liabilities, any Liabilities relating to the Plans and any Liabilities relating to the Transferred Employees incurred prior to the Closing Date; (viii) all Liabilities for which Parent or any of its Affiliates expressly has retained or agreed to pay, or be responsible for, pursuant to the terms hereof or of any Ancillary Agreement; (ix) all intercompany receivables, payables, loans and investments related to the Business; (x) all Liabilities assigned to or retained by the Seller under Article VI; and (xi) all Liabilities to the extent arising out of Actions relating to the matters constituting Excluded Liabilities specified in the foregoing clauses (i) – (x) of this Section 2.02(b).
Specific Limitations on Indemnification Notwithstanding anything in this Agreement to the contrary, the Corporation shall not be obligated under this Agreement to make any payment to Indemnitee with respect to any Proceeding: (a) To the extent that payment is actually made to Indemnitee under any insurance policy, or is made to Indemnitee by the Corporation or an affiliate otherwise than pursuant to this Agreement. Notwithstanding the availability of such insurance, Indemnitee also may claim indemnification from the Corporation pursuant to this Agreement by assigning to the Corporation any claims under such insurance to the extent Indemnitee is paid by the Corporation; (b) Provided there has been no Change in Control, for Liabilities in connection with Proceedings settled without the Corporation’s consent, which consent, however, shall not be unreasonably withheld; (c) For an accounting of profits made from the purchase or sale by Indemnitee of securities of the Corporation within the meaning of section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or similar provisions of any state statutory or common law; (d) To the extent it would be otherwise prohibited by law, if so established by a judgment or other final adjudication adverse to Indemnitee; or (e) In connection with a Proceeding commenced by Indemnitee (other than a Proceeding commenced by Indemnitee to enforce Indemnitee’s rights under this Agreement) unless the commencement of such Proceeding was authorized by the Board of Directors.
Assumption of Liability Notwithstanding any provision in this Agreement to the contrary, Licensee shall be solely responsible for any product liability, liability for death, illness, personal injury, improper business practice or any other statutory liability or any other liability under any law or regulation in respect of the Compound, Product and/or Licensed Product.
Assumption and Satisfaction of Liabilities Except as otherwise specifically set forth in any Ancillary Agreement from and after the Effective Time, (a) Tyco shall, or shall cause a member of the Tyco Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms (“Assume”), all of the Tyco Retained Liabilities, (b) Healthcare shall, or shall cause a member of the Healthcare Group to, Assume all the Healthcare Liabilities and (c) Electronics shall, or shall cause a member of the Electronics Group to, Assume all the Electronics Liabilities, in each case, regardless of (i) when or where such Liabilities arose or arise, (ii) whether the facts upon which they are based occurred prior to, on or subsequent to the Effective Time, (iii) where or against whom such Liabilities are asserted or determined or (iv) whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Tyco Group, the Healthcare Group or the Electronics Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates.
Limitations on Indemnification Obligations The rights of the Indemnified Parties to indemnification pursuant to the provisions of Section 7.2(a) and Section 7.2(b) are subject to the following provisions: (a) None of the Indemnified Parties shall be entitled to recover for any particular Loss pursuant to Section 7.2(a)(i) or Section 7.2(b)(i) (except in the case of Fraud) unless such Loss equals or exceeds $10,000 (and no such Loss less than $10,000 shall be applied against the Deductible). (b) The Indemnified Parties shall not be entitled to recover Losses pursuant to Section 7.2(a)(i) or Section 7.2(b)(i) (except in the case of Fraud) until the total amount which the Indemnified Parties would recover under Section 7.2(a)(i) or Section 7.2(b)(i), as applicable, in the aggregate (as limited by the other provisions hereof), but for this Section 7.4(b), exceeds $1,192,500 (the “Deductible”), in which case the applicable Indemnified Parties shall only be entitled to recover Losses in excess of such amount, subject to the other limitations herein. (c) Except, in each case, in the case of Fraud, (i) the maximum liability of Seller to the Purchaser Indemnitees with respect to any Losses of the Purchaser Indemnitees indemnifiable pursuant to Section 7.2(a)(i) shall not exceed $1,192,500 and (ii) the maximum liability of Seller or Purchaser, as applicable, for indemnifiable Losses pursuant to this Article VII shall not exceed the Aggregate Purchase Price. (d) The amount of any and all Losses indemnifiable hereunder shall be determined net of any amounts actually recovered by the Indemnified Parties under insurance policies (excluding, in the case of the Purchaser Indemnitees, the Representation and Warranty Insurance Policy) or other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses (which amounts actually recovered by the Indemnified Parties shall be calculated, in each case, net of any reasonable out-of-pocket costs and any Taxes incurred in connection with such recovery). In any case where a Purchaser Indemnitee actually recovers, under insurance policies (excluding, in the case of the Purchaser Indemnitees, the Representation and Warranty Insurance Policy) or from other collateral sources, any amount in respect of a matter for which such Indemnified Party was previously indemnified hereunder, such Indemnified Party shall promptly pay over to the Responsible Party a refund equal to the amount so recovered (after deducting therefrom the amount of the reasonable out-of-pocket costs and expenses and any Taxes incurred in connection with such recovery), if and solely to the extent that such amount of recovery would have reduced the amount to which the Indemnified Party would have been entitled pursuant to the first sentence of this Section 7.4(d), but not in excess of the aggregate amount previously paid to the Indemnified Parties hereunder in respect of such matter. (e) The Purchaser Indemnitees shall use commercially reasonable efforts to recover under the Representation and Warranty Insurance Policy, to the extent available and subject to applicable retention and other coverage limitations thereunder, for any Losses for Indemnified Taxes pursuant to Section 7.2(a)(iv) or for any Losses pursuant to Section 7.2(a)(ii) prior to seeking indemnification from Seller under this Agreement; provided that nothing in this Section 7.4(e) shall limit the Purchaser Indemnitees’ rights to indemnification pursuant to Section 7.2(a)(iv) or pursuant to Section 7.2(a)(ii) to the extent that recovery is not available under the Representation and Warranty Insurance Policy for any reason with respect to all or any portion of such Losses. The amount of any and all indemnifiable Losses for Indemnified Taxes pursuant to Section 7.2(a)(iv) or for any indemnifiable Losses pursuant to Section 7.2(a)(ii) shall be determined net of any amounts actually recovered by the Indemnified Parties under the Representation and Warranty Insurance Policy with respect to such Losses (which amounts actually recovered by the Indemnified Parties shall be calculated, in each case, net of any reasonable out-of-pocket costs and any Taxes incurred in connection with such recovery). In any case where a Purchaser Indemnitee actually recovers under the Representation and Warranty Insurance Policy any amount in respect of a matter for which such Indemnified Party was previously indemnified hereunder, such Indemnified Party shall promptly pay over to the Responsible Party a refund equal to the amount so recovered (after deducting therefrom the amount of the reasonable out-of-pocket costs and expenses and any Taxes incurred in connection with such recovery), if and solely to the extent that such amount of recovery would have reduced the amount to which the Indemnified Party would have been entitled pursuant to the first sentence of this Section 7.4(e), but not in excess of the aggregate amount previously paid to the Indemnified Parties hereunder in respect of such matter; provided that for the avoidance of doubt, Purchaser shall not be required to repay to Seller any amounts recovered under the Representation and Warranty Insurance Policy to the extent such repayment would, after taking into account the deductible and other limitations under the Representation and Warranty Insurance Policy, have the effect of reducing the amount of indemnifiable Losses actually recovered by Purchaser with respect to such claim below the amount of indemnified Losses to which Purchaser would otherwise be entitled to recover from Seller pursuant to this Article VII, but for this Section 7.4(e). Purchaser covenants and agrees that the Representation and Warranty Insurance Policy will expressly exclude any right of subrogation against the Seller Group (other than with respect to Fraud). (f) The Indemnified Parties shall be entitled to recover for a Loss only once under Article VII even if a claim or claims for indemnification in respect of such Loss has been made as a result of a breach of more than one representation, warranty, covenant or agreement contained in this Agreement. (g) The Indemnified Parties shall not be entitled to recover any Loss to the extent such Loss was included in or otherwise expressly taken into account in the determination of the Aggregate Purchase Price. (h) The rights to indemnification of the Indemnified Parties under this Article VII shall not be affected or deemed waived by reason of any investigation made by or on behalf of any party hereto (including by any of such party’s advisors or representatives) or by reason of the fact that such party or any of such advisors or representatives knew or should have known that any representation or warranty is, was or might be inaccurate. (i) For purposes of determining the breach or inaccuracy of any representation or warranty of the Company set forth in Article III or the Seller set forth in Article IV and in calculating the amount of any Losses attributable thereto, any “materiality,” “Material Adverse Effect,” or similar qualifications in such representations and warranties shall be disregarded, except that the foregoing shall not apply to (i) the use of the term “Material Contract” in any representation or warranty or (ii) any representation or warranty set forth in Section 3.4(a) or Section 3.6(a). (j) The Purchaser Indemnitees shall only be entitled to recover under this Article VII for any breach of any representations and warranties regarding Losses for Taxes with respect to taxable periods, or portions thereof, that end on or before the Closing Date, except to the extent such Losses arise from or are attributable to a breach of the representations or warranties contained in Sections 3.15(e), 3.15(k) or 3.15(l).
No Assumption of Liabilities Notwithstanding anything in this Agreement or elsewhere to the contrary, no SNH Entity is assuming, and no SNH Entity shall be responsible for, any liability of any kind or nature whether known or unknown, absolute, mature or not yet due, liquidated or non-liquidated, contingent, non-contingent, direct or indirect or otherwise, of any Mariner Entity or any other person for: (a) Any costs or expenses, including, but not limited to, legal fees, accounting fees, consulting and financing costs incurred by any Mariner Entity in negotiating this Agreement or in consummating the transactions contemplated hereby; (b) Any claim as a result of any injury to any person arising out of the rendering of or failure to render services by any Mariner Entity or its or his employees, agents or representatives or any other person performing services for or on behalf of any Mariner Entity (i) with respect to the Retained Facilities, prior to the Effective Time and, subject to, and upon the terms and conditions contained in the Interim Management Agreement, after the Effective Time, and (ii) with respect to the Transferred Facilities or any other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time; (c) Any liability to set off or recoupment (including set off or recoupment against Post-Effective Time accounts receivable) by any Third Party Payor by reason of any contractual claim, settlement, order or judgment retroactively adjusting the amounts payable for reimbursement purposes or recovering overpayments made or requiring the payment of fines, penalties or damages, or reduction of prospective payments to any Facility or interest, with respect to, or based upon, the services rendered by any Mariner Entity (i) with respect to the Retained Facilities, prior to the Effective Time and, subject to, and upon the terms and conditions contained in the Interim Management Agreement, after the Effective Time, and (ii) with respect to the Transferred Facilities or other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time, including liabilities that are subject to a stay ordered by the Court and liabilities that may be collected against the New Operator under state or Federal law; (d) Any taxes owed by any Mariner Entity, including, but not limited to, any investment tax recapture, depreciation recapture, employer taxes such as F.I.C.A. and F.U.T.A., any sales or use taxes, any personal property taxes, any withholding taxes and any workers' compensation or unemployment insurance premiums or adjustments and, in the case of any Mariner Entity's employees or any of its affiliates' employees, relating to, or arising out of, such employee's employment at any Retained Facility prior to the Effective Time; and with respect to the Transferred Facilities or other operations of the Mariner Entities, both prior to, and after, the Effective Time; (e) Any claim by any employee of any Mariner Entity for wages, salary, vacation, holiday, sick pay, welfare, or fringe benefits, relating to, or arising out of, such employee's employment prior to the Effective Time, except for those Employee Accruals assumed by the New Manager pursuant to Section 10.1 hereof and with respect to the Transferred Facilities or other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time; (f) Any claim arising under any instrument, agreement, indenture, contract or understanding to which any Mariner Entity is a party or by which it or any of its property is bound, unless such instrument, agreement, indenture, contract or understanding is explicitly described and affirmed and assumed by the SNH Entities in this Agreement or is otherwise expressly affirmed and assumed by separate instrument in writing executed by SPTMNR; or (g) Any claim, order or judgment otherwise arising out of the operation of any Facility or other operations of the Mariner Entities (except as otherwise expressly set forth herein but specifically including any claim, order or judgment arising under any applicable Federal, state or local statutes, laws, ordinances, rules and regulations, licensing requirements or conditions (including Medicare or Medicaid requirements or conditions, and environmental laws), or involving the imposition of any lien under any applicable law), in each case to the extent arising or attributable to conditions or events occurring prior to the Effective Time, and, subject to, and upon the terms and conditions contained in the Interim Management Agreement, after the Effective Time, and (ii) with respect to the Transferred Facilities or other operations of the Mariner Entities (except as otherwise expressly set forth herein), both prior to, and after, the Effective Time.