The Closing and Assumption of Liabilities Sample Clauses

Open Split View

Download

Share

Cite

The Closing and Assumption of Liabilities 

Sample 1

Save

Copy

Related to The Closing and Assumption of Liabilities

• Non-Assumption of Liabilities Neither Party shall be liable for the prior, existing or future obligations, liabilities or debts of the other Party.

• Indemnification and Assumption of Risk – Vendor Data VENDOR AGREES THAT IT IS VOLUNTARILY PROVIDING DATA (INCLUDING BUT NOT LIMITED TO: VENDOR INFORMATION, VENDOR DOCUMENTATION, VENDOR’S PROPOSALS, VENDOR PRICING SUBMITTED OR PROVIDED TO TIPS, TIPS CONTRACT DOCUMENTS, TIPS CORRESPONDENCE, VENDOR LOGOS AND IMAGES, VENDOR’S CONTACT INFORMATION, VENDOR’S BROCHURES AND COMMERCIAL INFORMATION, VENDOR’S FINANCIAL INFORMATION, VENDOR’S CERTIFICATIONS, AND ANY OTHER VENDOR INFORMATION OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION SOFTWARE AND SOURCE CODE UTILIZED BY VENDOR, SUBMITTED TO TIPS BY VENDOR AND ITS AGENTS) (“VENDOR DATA”) TO TIPS. FOR THE SAKE OF CLARITY, AND WITHOUT LIMITING THE BREADTH OF THE INDEMNITY OBLIGATIONS IN SECTION 14 ABOVE, VENDOR AGREES TO PROTECT, INDEMNIFY, AND HOLD THE TIPS INDEMNITEES HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, ACTIONS, DEMANDS, ALLEGATIONS, SUITS, JUDGMENTS, COSTS, EXPENSES, FEES, INCLUDING COURT COSTS, ATTORNEY’S FEES, AND EXPERT FEES AND ALL OTHER LIABILITY OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATING TO: (I) ANY UNAUTHORIZED, NEGLIGENT OR WRONGFUL USE OF, OR CYBER DATA BREACH INCIDENT AND VIRUSES OR OTHER CORRUPTING AGENTS INVOLVING, VENDOR’S DATA, PRICING, AND INFORMATION, COMPUTERS, OR OTHER HARDWARE OR SOFTWARE SYSTEMS, AND; (II) ALLEGATIONS OR CLAIMS THAT ANY VENDOR DATA INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY OR VENDOR.

• Transfer of Assets and Assumption of Liabilities (a) On or prior to the Effective Time, but in any case prior to the Distribution, in accordance with the Plan of Reorganization:

• Purchase and Sale of Assets Assumption of Liabilities 8 2.1 Purchase and Sale of Assets 8 2.2 Excluded Assets 10 2.3 Assumption of Liabilities 11 2.4 Excluded Liabilities 12 2.5 Further Conveyances and Assumptions; Consent of Third Parties 12 2.6 Purchase Price Allocation 13

• 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.

• 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.

• Conveyancing and Assumption Instruments In connection with, and in furtherance of, the Transfers of Assets and the Assumptions of Liabilities contemplated by this Agreement, the Parties shall execute or cause to be executed, on or after the date hereof by the appropriate entities to the extent not executed prior to the date hereof, any Conveyancing and Assumption Instruments necessary to evidence the valid Transfer to the applicable Party or member of such Party’s Group of all right, title and interest in and to its accepted Assets and the valid and effective Assumption by the applicable Party of its Assumed Liabilities for Transfers and Assumptions to be effected pursuant to Delaware Law or the Laws of one of the other states of the United States or, if not appropriate for a given Transfer or Assumption, and for Transfers or Assumptions to be effected pursuant to non-U.S. Laws, in such form as the Parties shall reasonably agree, including the Transfer of real property by mutually acceptable conveyance deeds as may be appropriate and in form and substance as may be required by the jurisdiction in which the real property is located. The Transfer of capital stock shall be effected by means of executed stock powers and notation on the stock record books of the corporation or other legal entities involved, or by such other means as may be required in any non-U.S. jurisdiction to Transfer title to stock and, only to the extent required by applicable Law, by notation on public registries.

• Assignment and Assumption of Leases Two (2) counterparts of the Assignment and Assumption of Leases, executed, acknowledged and sealed by Purchaser;

• Assignment and Assumption of Contracts (a) Seller hereby sells, assigns, transfers and conveys to Purchaser all of Seller’s right, title and interest in, to and under those service, supply and similar agreements set forth on Exhibit C, attached hereto and made a part hereof (the “Contracts”). (b) Purchaser hereby assumes all of the covenants, agreements, conditions and other terms and provisions stated in the Contracts which, under the terms of the Contracts, are to be performed, observed, and complied with by the property owner from and after the date of this Agreement. Purchaser acknowledges that Purchaser shall become solely responsible and liable under the Contracts for obligations arising or accruing from and after the date hereof, including with respect to any and all payments coming due under the Contracts for which Purchaser has received a credit or payment on the closing statement executed by Purchaser and Seller (the “Credited Payments”). It is specifically agreed between Seller and Purchaser that Seller shall remain liable for the performance of the obligations to be performed by Seller under the Contracts which were required to be performed prior to (but not from and after) the date hereof. (c) Purchaser shall indemnify, hold harmless and defend Seller from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses and court costs incurred in defending any such claim or in enforcing this indemnity) that may be incurred by Seller by reason of the failure of Purchaser to perform, observe and comply with its obligations under any of the Contracts arising or accruing during the period from and after the date hereof, including without limitation, claims made by any other contract party with respect to the Credited Payments (to the extent paid or assigned to Purchaser or for which Purchaser received a credit or payment at Closing). Seller shall indemnify, hold harmless and defend Purchaser from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses and court costs incurred in defending any such claim or in enforcing this indemnity) that may be incurred by Purchaser by reason of the failure of Seller to perform, observe and comply with its obligations under any of the Contracts arising or accruing during the period prior to the date hereof, including without limitation, claims made by any other contract party with respect to the Credited Payments, arising before the date hereof (to the extent such Credited Payments were not paid or assigned to Purchaser or for which Purchaser did not receive a credit or payment at Closing).

• Assignment and Assumption Agreement The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption Agreement, together with a processing and recordation fee of $3,500, and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an administrative questionnaire provided by the Administrative Agent.