Common use of Recoupments Clause in Contracts

Recoupments. Transferor acknowledges and agrees that, subject to Section 1.12, it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility prior to the Closing Date, and New Operator acknowledges and agrees that it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility from and after the Closing Date. Accordingly, in the event it is determined by Medicare or Medicaid that as a result of an audit or a denial of a claim (a) Transferor has been overpaid during the pre-Closing Date period or has otherwise received payment(s) for goods or services provided at the Facility prior to the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations or (b) New Operator has been overpaid during the period from and after the Closing Date or has otherwise received payment(s) for goods or services provided at the Facility from and after the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations (collectively, each party’s “Reimbursement Obligations”), each party is and shall be responsible for its Reimbursement Obligations. Accordingly, Transferor and New Operator (as applicable, “Indemnitor”) each agrees to indemnify, defend and hold harmless the other (as applicable, “Indemnitee”) from and against any and all claims, damages, liabilities, costs, expenses or other charges incurred by, assessed against or paid by Indemnitee (the “Claims”) with respect to the Reimbursement Obligations of Indemnitor. Each party agrees promptly after receipt thereof to provide the other party with any documentation received by it that it believes may give rise to a Claim under this Section (an “Indemnity Notice”). Within thirty (30) days after receipt of the Indemnity Notice, Indemnitor shall in good faith review the Claim and, if appropriate, Indemnitor shall, at its sole cost and expense, challenge, appeal or defend against the matter described in the Indemnity Notice within the applicable time periods required by law or agreement with the payor, and, in such event, no payment shall be due from Indemnitor to Indemnitee under this Section until the earlier to occur of (i) the full and final resolution of such claim on terms which require a payment by Indemnitor or Indemnitee or (ii) the recoupment from Indemnitee in whole or in part of the amount which is the subject of such Indemnity Notice, in which event payment shall be made within twenty (20) days following notice to Indemnitee of an event described in subparagraph (i) or (ii) hereof. If Indemnitor notifies Indemnitee in writing of its intention to challenge, appeal or defend any Claim, Indemnitor shall control such challenge, appeal or defense in its sole discretion and Indemnitor will not be liable to Indemnitee for any fees of counsel or any other expenses with respect to the challenge, appeal or defense of such Claim following any such notify; provided, however, Indemnitor may not settle any such challenge, appeal or defense without the consent of Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, unless the sole relief provided is payment of the applicable Reimbursement Obligations (and then only to the extent that such Reimbursement Obligations relate to periods for which Indemnitor is responsible). If Indemnitor fails or elects not to challenge, appeal or defend the Claims described in the Indemnity Notice, Indemnitor shall indemnify Indemnitee against such Claims within twenty (20) days following the thirty (30) day period described above. In addition to the foregoing, Indemnitor agrees to cooperate with Indemnitee in responding to any Claim and, subject to applicable law (including, without limitation, HIPAA) to make available to Indemnitee such documents and records as Indemnitor determines may be necessary or desirable to defend any such Claims. All payments not made by Indemnitor to Indemnitee when due shall be subject to interest at the Prime Rate announced in the Money Rates section of The Wall Street Journal plus two percent (2%) from the date due to the date paid in full. Notwithstanding anything contained in the Purchase Agreement or this Agreement to the contrary, this Section 1.11 shall supercede and govern any other provisions of the Purchase Agreement or this Agreement regarding the Reimbursement Obligations; provided, however, Transferor’s and New Operator’s obligations and liabilities under this Section 1.11 shall be subject to the limitations on liability set forth in Section 11.5 of the Purchase Agreement.

Recoupments. Transferor acknowledges and agrees that, subject to Section 1.12, it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility prior to the Closing Date, and New Operator acknowledges and agrees that it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility from and after the Closing Date. Accordingly, in the event it is determined by Medicare or Medicaid that as a result of an audit or a denial of a claim (a) Transferor has been overpaid during the pre-Closing Date period or has otherwise received payment(s) for goods or services provided at the Facility prior to the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations or (b) New Operator has been overpaid during the period from and after the Closing Date or has otherwise received payment(s) for goods or services provided at the Facility from and after the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations (collectively, each party’s “Reimbursement Obligations”), each party is and shall be responsible for its Reimbursement Obligations. Accordingly, Transferor and New Operator (as applicable, “Indemnitor”) each agrees to indemnify, defend and hold harmless the other (as applicable, “Indemnitee”) from and against any and all claims, damages, liabilities, costs, expenses or other charges incurred by, assessed against or paid by Indemnitee (the “Claims”) with respect to the Reimbursement Obligations of Indemnitor. Each party agrees promptly after receipt thereof to provide the other party with any documentation received by it that it believes may give rise to a Claim under this Section (an “Indemnity Notice”). Within thirty (30) days after receipt of the Indemnity Notice, Indemnitor shall in good faith review the Claim and, if appropriate, Indemnitor shall, at its sole cost and expense, challenge, appeal or defend against the matter described in the Indemnity Notice within the applicable time periods required by law or agreement with the payor, and, in such event, no payment shall be due from Indemnitor to Indemnitee under this Section until the earlier to occur of (i) the full and final resolution of such claim on terms which require a payment by Indemnitor or Indemnitee or (ii) the recoupment from Indemnitee in whole or in part of the amount which is the subject of such Indemnity Notice, in which event payment shall be made within twenty (20) days following notice to Indemnitee of an event described in subparagraph (i) or (ii) hereof. If Indemnitor notifies Indemnitee in writing of its intention to challenge, appeal or defend any Claim, Indemnitor shall control such challenge, appeal or defense in its sole discretion and Indemnitor will not be liable to Indemnitee for any fees of counsel or any other expenses with respect to the challenge, appeal or defense of such Claim following any such notifynotice; provided, however, Indemnitor may not settle any such challenge, appeal or defense without the consent of Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, unless the sole relief provided is payment of the applicable Reimbursement Obligations (and then only to the extent that such Reimbursement Obligations relate to periods for which Indemnitor is responsible). If Indemnitor fails or elects not to challenge, appeal or defend the Claims described in the Indemnity Notice, Indemnitor shall indemnify Indemnitee against such Claims within twenty (20) days following the thirty (30) day period described above. In addition to the foregoing, Indemnitor agrees to cooperate with Indemnitee in responding to any Claim and, subject to applicable law (including, without limitation, HIPAA) to make available to Indemnitee such documents and records as Indemnitor determines may be necessary or desirable to defend any such Claims. All payments not made by Indemnitor to Indemnitee when due shall be subject to interest at the Prime Rate announced in the Money Rates section of The Wall Street Journal plus two percent (2%) from the date due to the date paid in full. Notwithstanding anything contained in the Purchase Agreement or this Agreement to the contrary, this Section 1.11 shall supercede and govern any other provisions of the Purchase Agreement or this Agreement regarding the Reimbursement Obligations; provided, however, Transferor’s and New Operator’s obligations and liabilities under this Section 1.11 shall be subject to the limitations on liability set forth in Section 11.5 Article 11 of the Purchase Agreement.

Recoupments. Transferor acknowledges and agrees that, subject to Section 1.12, it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility prior to the Closing Date, and New Operator acknowledges and agrees that it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility from and after the Closing Date. Accordingly, in the event it is determined by Medicare or Medicaid that as a result of an audit or a denial of a claim (a) Transferor has been overpaid during the pre-Closing Date period or has otherwise received payment(s) for goods or services provided at the Facility prior to the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations or (b) New Operator has been overpaid during the period from and after the Closing Date or has otherwise received payment(s) for goods or services provided at the Facility from and after the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations (collectively, each party’s “Reimbursement Obligations”), each party is and shall be responsible for its Reimbursement Obligations. Accordingly, Transferor and New Operator (as applicable, “Indemnitor”) each agrees to indemnify, defend and hold harmless the other (as applicable, “Indemnitee”) from and against any and all claims, damages, liabilities, costs, expenses or other charges incurred by, assessed against or paid by Indemnitee (the “Claims”) with respect to the Reimbursement Obligations of Indemnitor. Each party agrees promptly after receipt thereof to provide the other party with any documentation received by it that it believes may give rise to a Claim under this Section (an “Indemnity Notice”). Within thirty (30) days after receipt of the Indemnity Notice, Indemnitor shall in good faith review the Claim and, if appropriate, Indemnitor shall, at its sole cost and expense, challenge, appeal or defend against the matter described in the Indemnity Notice within the applicable time periods required by law or agreement with the payor, and, in such event, no payment shall be due from Indemnitor to Indemnitee under this Section until the earlier to occur of (i) the full and final resolution of such claim on terms which require a payment by Indemnitor or Indemnitee or (ii) the recoupment from Indemnitee in whole or in part of the amount which is the subject of such Indemnity indemnity Notice, in which event payment shall be made within twenty (20) days following notice to Indemnitee of an event described in subparagraph (i) or (ii) hereof. If Indemnitor notifies Indemnitee in writing of its intention to challenge, appeal or defend any Claim, Indemnitor shall control such challenge, appeal or defense in its sole discretion and Indemnitor will not be liable to Indemnitee for any fees of counsel or any other expenses with respect to the challenge, appeal or defense of such Claim following any such notify; provided, however, Indemnitor may not settle any such challenge, appeal or defense without the consent of Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, unless the sole relief provided is payment of the applicable Reimbursement Obligations (and then only to the extent that such Reimbursement Obligations relate to periods for which Indemnitor is responsible). If Indemnitor fails or elects not to challenge, appeal or defend the Claims described in the Indemnity Notice, Indemnitor shall indemnify Indemnitee against such Claims within twenty (20) days following the thirty (30) day period described above. In addition to the foregoing, Indemnitor agrees to cooperate with Indemnitee in responding to any Claim and, subject to applicable law (including, without limitation, HIPAA) to make available to Indemnitee such documents and records as Indemnitor determines may be necessary or desirable to defend any such Claims. All payments not made by Indemnitor to Indemnitee when due shall be subject to interest at the Prime Rate announced in the Money Rates section of The Wall Street Journal plus two percent (2%) from the date due to the date paid in full. Notwithstanding anything contained in the Purchase Agreement or this Agreement to the contrary, this Section 1.11 shall supercede and govern any other provisions of the Purchase Agreement or this Agreement regarding the Reimbursement Obligations; provided, however, Transferor’s and New Operator’s obligations and liabilities under this Section 1.11 shall be subject to the limitations on liability set forth in Section 11.5 of the Purchase Agreement.

Recoupments. Transferor acknowledges and agrees that, subject to Section 1.12, it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility prior to the Closing Date, and New Operator acknowledges and agrees that it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility from and after the Closing Date. Accordingly, in the event it is determined by Medicare or Medicaid that as a result of an audit or a denial of a claim (a) Transferor has been overpaid during the pre-Closing Date period or has otherwise received payment(s) for goods or services provided at the Facility prior to the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations or (b) New Operator has been overpaid during the period from and after the Closing Date or has otherwise received payment(s) for goods or services provided at the Facility from and after the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations (collectively, each party’s “Reimbursement Obligations”), each party is and shall be responsible for its Reimbursement Obligations. Accordingly, Transferor and New Operator (as applicable, “Indemnitor”) each agrees to indemnify, defend and hold harmless the other (as applicable, “Indemnitee”) from and against any and all claims, damages, liabilities, costs, expenses or other charges incurred by, assessed against or paid by Indemnitee (the “Claims”) with respect to the Reimbursement Obligations of Indemnitor. Each party agrees promptly after receipt thereof to provide the other party with any documentation received by it that it believes may give rise to a Claim under this Section (an “Indemnity Notice”). Within thirty (30) days after receipt of the Indemnity Notice, Indemnitor shall in good faith review the Claim and, if appropriate, Indemnitor shall, at its sole cost and expense, challenge, appeal or defend against the matter described in the Indemnity Notice within the applicable time periods required by law or agreement with the payor, and, in such event, no payment shall be due from Indemnitor to Indemnitee Indemnitec under this Section until the earlier to occur of (i) the full and final resolution of such claim on terms which require a payment by Indemnitor or Indemnitee or (ii) the recoupment from Indemnitee in whole or in part of the amount which is the subject of such Indemnity Notice, in which event payment shall be made within twenty (20) days following notice to Indemnitee of an event described in subparagraph (i) or (ii) hereof. If Indemnitor notifies Indemnitee in writing of its intention to challenge, appeal or defend any Claim, Indemnitor shall control such challenge, appeal or defense in its sole discretion and Indemnitor will not be liable to Indemnitee for any fees of counsel or any other expenses with respect to the challenge, appeal or defense of such Claim following any such notify; provided, however, Indemnitor may not settle any such challenge, appeal or defense without the consent of Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, unless the sole relief provided is payment of the applicable Reimbursement Obligations (and then only to the extent that such Reimbursement Obligations relate to periods for which Indemnitor is responsible). If Indemnitor fails or elects not to challenge, appeal or defend the Claims described in the Indemnity Notice, Indemnitor shall indemnify Indemnitee against such Claims within twenty (20) days following the thirty (30) day period described above. In addition to the foregoing, Indemnitor agrees to cooperate with Indemnitee in responding to any Claim and, subject to applicable law (including, without limitation, HIPAA) to make available to Indemnitee such documents and records as Indemnitor determines may be necessary or desirable to defend any such Claims. All payments not made by Indemnitor to Indemnitee when due shall be subject to interest at the Prime Rate announced in the Money Rates section of The Wall Street Journal plus two percent (2%) from the date due to the date paid in full. Notwithstanding anything contained in the Purchase Agreement or this Agreement to the contrary, this Section 1.11 shall supercede supersede and govern any other provisions of the Purchase Agreement or this Agreement regarding the Reimbursement Obligations; provided, however, Transferor’s and New Operator’s obligations and liabilities under this Section 1.11 shall be subject to the limitations on liability set forth in Section 11.5 of the Purchase Agreement.

Recoupments. Transferor acknowledges and agrees that, subject to Section 1.12, it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility Facilities prior to the Closing Date, and New Operator acknowledges and agrees that it shall be responsible for all Medicare and Medicaid billing and cost reports filed with Medicare and Medicaid with respect to the Facility Facilities from and after the Closing Date. Accordingly, in the event it is determined by Medicare or Medicaid that as a result of an audit or a denial of a claim (a) Transferor has been overpaid during the pre-Closing Date period or has otherwise received payment(s) for goods or services provided at the Facility Facilities prior to the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations or (b) New Operator has been overpaid during the period from and after the Closing Date or has otherwise received payment(s) for goods or services provided at the Facility Facilities from and after the Closing Date to which it was not entitled for any reason under applicable Medicare or Medicaid rules and regulations (collectively, each party’s “Reimbursement Obligations”), each party is and shall be responsible for its Reimbursement Obligations. Accordingly, Transferor and New Operator (as applicable, “Indemnitor”) each agrees to indemnify, defend and hold harmless the other (as applicable, “Indemnitee”) from and against any and all claims, damages, liabilities, costs, expenses or other charges incurred by, assessed against or paid by Indemnitee (the “Claims”) with respect to the Reimbursement Obligations of Indemnitor. Each party agrees promptly after receipt thereof to provide the other party with any documentation received by it that it believes may give rise to a Claim under this Section (an “Indemnity Notice”). Within thirty (30) days after receipt of the Indemnity Notice, Indemnitor shall in good faith review the Claim and, if appropriate, Indemnitor shall, at its sole cost and expense, challenge, appeal or defend against the matter described in the Indemnity Notice within the applicable time periods required by law or agreement with the payor, and, in such event, no payment shall be due from Indemnitor to Indemnitee under this Section until the earlier to occur of (i) the full and final resolution of such claim on terms which require a payment by Indemnitor or Indemnitee or (ii) the recoupment from Indemnitee in whole or in part of the amount which is the subject of such Indemnity Notice, in which event payment shall be made within twenty ten (2010) days following notice to Indemnitee of an event described in subparagraph (i) or (ii) hereof. If Indemnitor notifies Indemnitee in writing of its intention to challenge, appeal or defend any Claim, Indemnitor shall control such challenge, appeal or defense in its sole discretion and Indemnitor will not be liable to Indemnitee for any fees of counsel or any other expenses with respect to the challenge, appeal or defense of such Claim following any such notify; provided, however, Indemnitor may not settle any such challenge, appeal or defense without the consent of Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, unless the sole relief provided is payment of the applicable Reimbursement Obligations (and then only to the extent that such Reimbursement Obligations relate to periods for which Indemnitor is responsible). If Indemnitor fails or elects not to challenge, appeal or defend the Claims described in the Indemnity Notice, Indemnitor shall indemnify Indemnitee against such Claims within twenty ten (2010) days following the thirty (30) day period described above. In addition to the foregoing, Indemnitor agrees to cooperate with Indemnitee in responding to any Claim and, subject to applicable law (including, without limitation, HIPAA) to make available to Indemnitee such documents and records as Indemnitor determines may be necessary or desirable to defend any such Claims. All payments not made by Indemnitor to Indemnitee when due shall be subject to interest at the Prime Rate announced in the Money Rates section of The Wall Street Journal plus two percent (2%) from the date due to the date paid in full. Notwithstanding anything contained in the Purchase Agreement or this Agreement to the contrary, this Section 1.11 shall supercede and govern any other provisions of the Purchase Agreement or this Agreement regarding the Reimbursement Obligations; provided, however, Transferor’s and New Operator’s obligations and liabilities under this Section 1.11 shall be subject to the limitations on liability set forth in Section 11.5 of the Purchase Agreement.