Common use of Non-Assumption of Liabilities Clause in Contracts

Non-Assumption of Liabilities. Manager shall not assume or be obligated to pay any liability of MCA, whether fixed or contingent, recorded or unrecorded, including any of the following as of the date of this Agreement (collectively, the “Excluded Liabilities”): (i) the accounts payable of MCA; (ii) accrued expenses of MCA; (iii) unpaid claims or premiums relating to MCA’s programs of unemployment and workers’ compensation; (iv) any gain on sale and any recapture that may be recognized under the Medicaid and other third-party payor programs based on the transactions herein contemplated; (v) all employee claims made by employees of MCA; (F) liabilities associated with any pension plan, welfare benefit plan, or any other benefit plan or arrangement sponsored by MCA; (vi) third-party payor settlements, retroactive adjustments, overpayments, recoupments, and fines, penalties, and assessments, if any, arising under any third-party payor programs; (vii) all amounts payable to DHHS regarding MCA’s operation of the Facility including any settlement as contemplated herein; (viii) the professional liability claims or other claims for acts or omissions of MCA; (ix) any unpaid franchise permit or similar fees, including fees that are accrued but not yet due and payable; (x) any survey findings and implementation of any corrective action or enforcement remedy, including fines, penalties, and assessments, if any, including those that are issued or implemented after the Commencement Date but that accrue prior to the Commencement Date; (xi) MCA’s liabilities and obligations under the Lease, and (xii) any other liability related to the acts or omissions of MCA with respect to the Facility.

Non-Assumption of Liabilities. Manager shall not assume Neither Purchaser nor any of its Affiliates or be obligated Subsidiaries (other than the Transferred Entities following the Closing, but subject in all respects to pay Purchaser’s and its Affiliates’ (including the Transferred Entities’) right to indemnification pursuant to Section 10.2(c) for the Non-assumed Liabilities) shall, by the execution and performance of this Agreement, by operation of law or otherwise, assume, become responsible for or incur any liability or obligation of MCAany nature of the Transferred Entities, whether fixed legal or equitable, matured or contingent, recorded known or unrecordedunknown, including any of the following as of foreseen or unforeseen, ordinary or extraordinary, patent or latent, asserted prior to, at or after the date of this Agreement (collectivelyAgreement, relating to the “Excluded Liabilities”):following: (i) any severance pay obligation of any of the accounts payable Transferred Entities or of MCANewpark Texas, DFI, Newpark or any of its other Affiliates or Subsidiaries with respect to any Former Employee; (ii) accrued expenses any Benefit Plan (other than (A) the Change of MCAControl Agreements listed in Section 3.16(h)(ii) of the Newpark Disclosure Schedule between NESI and the Transferred Employees listed therein, and (B) the liabilities and obligations of any Transferred Entity under any Benefit Plan to the extent of any amounts with respect thereto are recorded as a liability in the calculation of the Estimated Net Working Capital, as adjusted by the Closing Date Net Working Capital, for which Purchaser shall be responsible post-Closing), including, without limitation, the Newpark Group Health Plan, and any other employee benefit plan (within the meaning of Section 3(3) of ERISA) or any other fringe benefit program maintained or sponsored by Newpark or any of its Subsidiaries or Affiliates or to which Newpark or any of its Subsidiaries or Affiliates contributes or any contributions, benefits or liabilities therefor or any liability for the withdrawal or partial withdrawal from or termination of any such plan or program by Newpark or any of its Subsidiaries or Affiliates; (iii) unpaid claims or premiums relating to MCA’s programs the litigation described in Section A of unemployment and workers’ compensationSection 3.8 of the Newpark Disclosure Schedule; (iv) any gain on sale and any recapture that may be recognized under closure, post-closure, monitoring, testing, analyzing, clean-up or remediation obligations relating to the Medicaid and other third-party payor programs based on site or facility known as the transactions herein contemplated;Gxxxxxxx Landfarm near Eunice, Louisiana; and (v) all employee claims made by employees any Indebtedness of MCA; (F) liabilities associated with any pension planNewpark Texas, welfare benefit planNewpark or its other Affiliates or Subsidiaries, or any other benefit plan or arrangement sponsored by MCA; (vi) third-party payor settlementsincluding, retroactive adjustmentswithout limitation, overpayments, recoupments, and fines, penalties, and assessments, if any, that arising under the current $150,000,000.00 Term Credit Agreement dated August 18, 2006 between Newpark and JPMorgan Chase Bank, NA, as administrative agent, Wilmington Trust Company as collateral agent and the Loan Parties and Lenders identified therein or its predecessor or successor credit agreements (collectively, the “Credit Agreement”) and any third-party payor programs; (vii) all amounts payable to DHHS regarding MCA’s operation obligations or liabilities of the Facility including any settlement Transferred Entities arising out of or in connection with their guaranteeing of the Credit Agreement or pledging their assets as contemplated herein; (viii) security for the professional liability claims or other claims for acts or omissions Credit Agreement. Notwithstanding the foregoing, Capital Leases of MCA; (ix) any unpaid franchise permit or similar fees, including fees that the Transferred Entities shall not be considered a Non-assumed Liability. Each and all of the foregoing are accrued but not yet due and payable; (x) any survey findings and implementation of any corrective action or enforcement remedy, including fines, penalties, and assessments, if any, including those that are issued or implemented after hereinafter referred to as the Commencement Date but that accrue prior to the Commencement Date; (xi) MCA’s liabilities and obligations under the Lease, and (xii) any other liability related to the acts or omissions of MCA with respect to the Facility“Non-assumed Liabilities.”

Non-Assumption of Liabilities. Manager Consultant shall not assume or be obligated to pay any liability of MCA, whether fixed or contingent, recorded or unrecorded, including any of the following as of the date of this Agreement (collectively, the “Excluded Liabilities”): (i) the accounts payable of MCA; (ii) accrued expenses of MCA; (iii) unpaid claims or premiums relating to MCA’s programs of unemployment and workers’ compensation; (iv) any gain on sale and any recapture that may be recognized under the Medicaid and other third-party payor programs based on the transactions herein contemplated; (v) all employee claims made by employees of MCA; (F) liabilities associated with any pension plan, welfare benefit plan, or any other benefit plan or arrangement sponsored by MCA; (vi) third-party payor settlements, retroactive adjustments, overpayments, recoupments, and fines, penalties, and assessments, if any, arising under any other third-party payor programs; (vii) all amounts payable to DHHS regarding MCA’s operation of the Facility including any settlement as contemplated herein; (viii) the professional liability claims or other claims for acts or omissions of MCA; (ix) any unpaid franchise permit or similar fees, including fees that are accrued but not yet due and payable; (x) any survey findings and implementation of any corrective action or enforcement remedy, including fines, penalties, and assessments, if any, including those that are issued or implemented after the Commencement Date but that accrue prior to the Commencement Date; (xi) MCA’s liabilities and obligations under the Lease, and (xii) any other liability related to the acts or omissions of MCA with respect to the Facility.

Non-Assumption of Liabilities. Manager Except as expressly provided in Section 1.2 above, Buyer shall not assume no liabilities or be obligated obligations of Seller relating to pay any liability of MCAthe Assets or the Purchased Business, it being expressly acknowledged and agreed by the parties that all such liabilities and obligations, whether now existing or arising in the future, fixed or contingent, recorded known or unrecordedunknown, including any of the following as of the date of this Agreement asserted or unasserted (collectively, the “"Excluded Liabilities”): "), are and shall remain the liabilities and obligations of Seller for all purposes. The Excluded Liabilities shall include, without limitation, (i) all liabilities for amounts owed by the accounts payable of MCA; Purchased Business to Seller and its affiliates, (ii) all liabilities and obligations of Seller to employees or former employees of Seller who are or who were assigned to the Purchased Business (whether or not such employees receive or accept offers of employment by Buyer), except as may otherwise be expressly provided herein, or any of their beneficiaries, heirs or assignees, whether in connection with the transactions contemplated hereunder or otherwise, excluding accrued expenses of MCA; for vacation and sick pay, reflected on the 1995 Balance Sheet, but only to the extent outstanding on the Closing Date and reflected on the Closing Balance Sheet (iii) unpaid claims all liabilities for Taxes (as hereinafter defined), other than the Assumed Taxes (as hereinafter defined), including, without limitation, all Taxes imposed on Seller by reason of the sale of the Purchased Business to Buyer hereunder or premiums relating by reason of any subsequent liquidation, dissolution or winding up of Seller except as otherwise expressly provided in Section 5.2 of this Agreement, and all Taxes which are or shall be incurred by any affiliated group, as defined in Section 1504(a) of the Internal Revenue Code of 1986, as amended (the "Code"), without regard for the provisions regarding the exclusion of foreign corporations contained in Section 1504(b)(3) of the Code, as in effect during any relevant period (or any other group required to MCA’s programs file or filing returns on a consolidated or combined basis), of unemployment and workers’ compensation; (iv) any gain on sale and any recapture that may be recognized under the Medicaid and other third-party payor programs based on the transactions herein contemplated; (v) all employee claims made by employees of MCA; (F) liabilities associated with any pension plan, welfare benefit planwhich Seller, or any other benefit plan predecessor of, or arrangement sponsored by MCA; (vi) third-party payor settlementstransferor to, retroactive adjustmentsSeller, overpayments, recoupments, and fines, penalties, and assessments, if is or has been a member of any, arising under any third-party payor programs; (vii) all amounts payable to DHHS regarding MCA’s operation of the Facility including any settlement as contemplated herein; (viii) the professional liability claims or other claims for acts or omissions of MCA; (ix) any unpaid franchise permit or similar fees, including fees that are accrued but not yet due and payable; (x) any survey findings and implementation of any corrective action or enforcement remedy, including fines, penalties, and assessments, if any, including those that are issued or implemented after the Commencement Date but that accrue prior to the Commencement Date; (xi) MCA’s liabilities and obligations under the Lease, and (xii) any other liability related to the acts or omissions of MCA with respect to the Facility.

Non-Assumption of Liabilities. Manager Except only as provided in Sections 2.1(b) and 2.2 hereof, the Buyer shall not assume assume, pay, perform, discharge, or be obligated to pay accept any liability liabilities, debts or obligations of MCAthe Seller, Xxxxxxx Properties, Shareholders or Members of any kind whatsoever, whether fixed or actual, contingent, recorded accrued, known or unrecordedunknown, including including, without limitation, any of the following as of the date of this Agreement (collectively, the “Excluded Liabilities”):following: (i) Any Liability arising out of or related to products of the accounts payable of MCASeller to the extent manufactured or sold prior to the Closing other than to the extent assumed under Sections 2.1(b)(iii), (iv) or (v); (ii) accrued expenses Any Liability under a Contact assumed by the Buyer pursuant to Section 2.1(b) or 2.2 that arises after the Closing but that arises out of MCAor relates to any Breach that occurred prior to the Closing; (iii) unpaid claims Any Liability for taxes of whatever kind (except to the extent of taxes which are current liabilities and assumed by the Buyer pursuant to Section 2.1(b)(i) or premiums relating to MCA’s programs (ii)), including taxes arising or resulting from the conduct of unemployment and workers’ compensationthe Business, the sale of the Purchased Assets or Xxxxxxx Properties Purchased Assets or any deferred taxes; (iv) Any Liability under Contracts not assumed by the Buyer under Sections 2.1(b) or 2.2 or any gain on sale and any recapture that may be recognized under the Medicaid and other third-party payor programs based on the transactions herein contemplatedLiability relating to Excluded Assets; (v) all Any Liability under any of the Seller's employee claims made by employees of MCA; (F) liabilities associated with any pension plan, welfare benefit plan, or any other benefit plan or arrangement sponsored by MCABenefit Plans; (vi) third-party payor settlementsAny Liability to (A) LHDL, retroactive adjustments(B) DCF (including, overpaymentswithout limitation, recoupmentsthat certain Promissory Note dated January 11, and fines2001 in the original principal amount of $200,000) or (C) Related Persons to the Seller or Xxxxxxx Properties (except, penaltiesin the case of clause (C), and assessmentsto the extent reflected in the January 31, if any, arising under any third-party payor programs2002 balance sheet of the Seller); (vii) all Any Liability to indemnify, reimburse or advance amounts payable to DHHS regarding MCA’s operation any director, officer or employee of the Facility including any settlement as contemplated hereinSeller or Xxxxxxx Properties; (viii) Any Liability arising out of any litigation, claims, proceedings or investigations pending as of the professional liability claims Closing, or other claims for acts any Liability arising out of any litigation, claim, proceeding or omissions investigation commenced after the Closing but arising out of MCAor related to any occurrence, event or happening prior to the Closing; (ix) Any Liability arising out of or related to the Seller's or Xxxxxxx Properties noncompliance with any unpaid franchise permit or similar fees, Laws (including fees that are accrued but not yet due and payable;Environmental Laws); or (x) Any Liability of the Seller or Xxxxxxx Properties as a guarantor, indemnitor or similar suretor (including, without limitation, any survey findings and implementation guaranty given to or for the benefit of any corrective action or enforcement remedy, including fines, penalties, and assessments, if any, including those that are issued or implemented after the Commencement Date but that accrue prior to the Commencement Date; (xi) MCA’s liabilities and obligations under the Lease, and (xii) any other liability related to the acts or omissions of MCA U. S. Small Business Administration with respect to the FacilitySeller's former Maple Grove, Minnesota facilities), except any Liability as guarantor of any of the Assumed Liabilities or Assumed Xxxxxxx Properties Obligations. All such non-assumed liabilities, debts and obligations shall remain the responsibility of the Seller or Xxxxxxx Properties which shall pay and discharge the same when and as due.

Non-Assumption of Liabilities. Manager Buyer shall not assume any liabilities or be obligated to pay any liability obligations of MCASeller, whether fixed such liabilities are known or unknown, actual or contingent, recorded liquidated or unrecordedunliquidated, including except that Buyer agrees to assume from and after the Closing, (a) the liabilities and obligations of Seller which arise after the Closing Date (as defined in Section 3.1) and relate to periods after the Closing Date pursuant to any contract, agreement or lease set forth on Schedule 1.3(a) ("Assumed Contracts"); (b) the accounts payable and accrued expenses described on Schedule 1.3(b); and (c) commitments of the following Seller to provide products or services which have not been completed as of the date Closing Date, as set forth on Schedule 1.3(b) (the liabilities described in clauses (a), (b) and (c) are referred to as the "Assumed Liabilities"). Seller will indemnify and hold harmless Buyer, in accordance with Article VIII, from and against all of this Agreement its liabilities and obligations, other than the Assumed Liabilities (collectively, the “"Excluded Liabilities”): "), even if Buyer voluntarily pays any such Excluded Liability, it being agreed that Buyer shall not pay any such Excluded Liability without the prior written consent of Seller unless, (x) with respect to any liabilities or obligations relating to Taxes, Buyer has given Seller 45 days' prior written notice (or such lesser time as may be necessary based on the notice given to Buyer by the obligee, provided that Buyer immediately notifies Seller of such notice and provides Seller a copy thereof) of the request or demand for payment and thereafter the creditor or obligee threatens in writing to bring suit or does bring suit against Buyer in respect of such obligations, and (y) with respect to any other Excluded Liability, Buyer has given 20 days prior written notice (or such lesser time as may be necessary based on notice given to Buyer by the obligee, provided that Buyer immediately notifies Seller of such notice and provides Seller a copy thereof) of the request or demand and thereafter Buyer receives another demand or the creditor or obligee threatens to bring suit and does bring suit against Buyer in respect of such obligation. By way of illustration and not limitation, Excluded Liabilities include but are not limited to the following: (i) the accounts payable all litigation, actual or threatened, relating to any act or omission of MCA; Seller; (ii) accrued expenses all liabilities and obligations under all employee benefit plans in which individuals or employees of MCA; Seller or its affiliates (or former employees or beneficiaries thereof) have participated, including any liability for failure to comply with the requirements of ERISA or any other federal, state, local or foreign statute; (iii) unpaid claims all liabilities or premiums obligations to employees of Seller arising from or relating to MCA’s programs of unemployment and workers’ compensation; (A) earned or accrued vacation pay, (B) earned or accrued sick leave, (C) short-term or long-term disability benefits, (D) severance pay, or (E) any other employee benefits, except the employee-related liabilities described on Schedule 1.3(b); (iv) any gain on sale and any recapture that may be recognized under the Medicaid and other third-party payor programs based on the transactions herein contemplated; all liabilities or obligations for Taxes owed by Seller; (v) all employee claims made by employees of MCAliabilities and obligations under any environmental statutes; (F) liabilities associated with any pension plan, welfare benefit plan, or any other benefit plan or arrangement sponsored by MCA; (vi) third-party payor settlementsall accrued liabilities and accounts payable of Seller as of the Closing Date, retroactive adjustments, overpayments, recoupments, except the payables and fines, penalties, and assessments, if any, arising under any third-party payor programs; expenses described on Schedule 1.3(b); (vii) all amounts payable liabilities of Seller to DHHS regarding MCA’s operation of the Facility including make any settlement as contemplated herein; distributions to its stockholders or former stockholders; (viii) all liabilities and obligations in respect of the professional liability claims or other claims for acts or omissions White Plains Lease (as defined in Section 4.9) arising prior to the Closing Date and all liabilities and obligations in respect of MCA; the lease listed in item #2 of Schedule 4.9 and (ix) any unpaid franchise permit or similar fees, including fees that are accrued but not yet due and payable; (x) any survey findings and implementation of any corrective action or enforcement remedy, including fines, penalties, and assessments, if any, including those that are issued or implemented after all liabilities set forth on the Commencement Date but that accrue prior to Schedules hereto except for the Commencement Date; (xi) MCA’s liabilities and obligations under the Lease, and (xii) any other liability related to the acts or omissions of MCA with respect to the FacilityAssumed Liabilities.