Liabilities Not Assumed Notwithstanding any contrary provision contained herein, PSC shall not be deemed to have assumed, nor shall PSC assume (i) any liability which may be incurred by reason of any uncured material breach of or any monetary default under such contracts, leases, commitments or obligations which occurred prior to the Closing Date; (ii) any liability for any employee benefits payable to employees of Seller, including, but not limited to, liabilities arising under any Seller Plan (as defined in Section 2.21 hereto) and liabilities for accrued sick leave or vacation days; (iii) any liability based upon or arising out of a violation of any antitrust or similar restraint-of-trade laws by Seller, including, without limiting the generality of the foregoing, any such antitrust liability which may arise in connection with agreements, contracts, commitments or orders for the sale of goods or provision of services by Seller reflected on the books of Seller at or prior to the Closing Date; (iv) any liability based upon or arising out of overpayments due to the Medicare and/or Medicaid programs, any other third party payor, or any liability based upon or arising out of a violation of any false claim, anti-kickback, prohibition or self-referral laws or similar fraud and abuse laws by Seller; (v) any medical malpractice liability associated with the Business or Seller or any person associated with the Business or Seller; (vi) any liability based upon or arising out of any tortious conduct or wrongful actions of Seller or any Shareholder; or (vii) any liability for the payment of any taxes imposed by law on Seller arising from or by reason of the transactions contemplated by this Agreement or otherwise.
Excluded Liabilities Other than as specifically listed in Section 2.03 above, Buyer shall not assume any Liability whatsoever of Sellers, whether or not arising from or related to the Business or the Purchased Assets (the “Excluded Liabilities”), and Sellers shall pay, perform and discharge, as and when due, each such Excluded Liability. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, and under no circumstances shall Buyer be deemed to assume any Liability arising out of or relating to:
(a) any actual or alleged tortious conduct, breach of Contract or violation of Applicable Law by any Seller or their employees or agents;
(b) any product sold or manufactured prior to the Closing Date;
(c) Taxes of any kind or character (other than property taxes attributable to the Purchased Assets, to the extent prorated hereunder);
(d) the ownership, operation, use or disposal of any Excluded Asset;
(e) any collective bargaining agreement, employee compensation or employee benefits including Liability for severance pay, overtime pay, bonus or incentive compensation, retirement plans (including any underfunding or withdrawal liability pursuant to the Multiemployer Pension Plan Amendment Act of 1980, arising from contributions made by the Sellers to the plans in question, as calculated through, and as of, any such withdrawal caused by the purchase of the Purchased Assets described herein, or otherwise triggered within thirty (30) days after the Closing Date, regardless of whether or not the amount of such Liability is known as of the time of such withdrawal) unemployment compensation, vacation, sick leave, termination pay or relating to any Employee Benefit Plan of any Seller or of any of their Affiliates;
(f) any Environmental Liability relating to or arising out of any condition or obligation existing on or prior to the Closing Date;
(g) any Debt of Sellers or any of their Affiliates;
(h) any Proceedings relating to Sellers or to the conduct or ownership of the Business or the Purchased Assets on or prior to the Closing Date, whether or not listed in Section 4.07(a) of the Disclosure Letter;
(i) any Liability arising out of any present or former business activity of Sellers other than the Business;
(j) any claims, choses in action, causes of action, rights of recovery, rights of set-off of any kind by any third party (including any employee or former employee of any Seller) arising out of the conduct of the Business, or the ownership, operation or use of any Purchased Assets on or prior to the Closing Date; or
(k) any Liability of Sellers under or arising by reason of this Agreement, or incurred in connection with the transactions contemplated by this Agreement, including any Sellers’ legal and accounting fees and expenses.
Retained Liabilities All Liabilities of the Company other than Assumed Liabilities (the "RETAINED LIABILITIES") shall be retained and paid, performed and discharged when due by the Company and Parent (PROVIDED, that the Company shall have the ability to contest, in good faith, any such claim of liability asserted in respect thereof by any Person other than Purchaser and its Affiliates, so long as such contest does not result in a Lien upon any of the Assets):
(i) except to the extent any such liability is reflected on the Closing Date Balance Sheet as a current liability of the Business, any loss or liability of the Company of any nature or description, whether liquidated or contingent, to the extent (a) resulting from events or conditions which occurred or existed prior to the Transfer Time, or (b) arising out of or relating to the Excluded Assets (including those items identified as Retained Liabilities in SECTION 1.08);
(ii) any loss or liability relating to current or former employees of the Business (and their eligible dependents and beneficiaries), including with respect to employment or Benefit Plans, which accrued on or prior to the Transfer Time, except to the extent that such liability is reflected on the Closing Balance Sheet as a current liability of the Business;
(iii) all Liabilities with respect to gaming chips and tokens issued by the Company (but not progressive meters), except as provided otherwise herein;
(iv) all Liabilities related to Benefit Plans, except to the extent that such liability is reflected on the Closing Balance Sheet as a current liability of the Business;
(v) all Indebtedness (other than current accounts payable or accrued expenses of the Company incurred or accrued in the ordinary course of business, but only to the extent that the accrual for such payables and expenses has been properly reflected on the Closing Balance Sheet, and other than to the extent arising following the Transfer Time under Contracts that constitute Assets);
(vi) any Liability, whether currently in existence or arising hereafter, owed by the Company to any of its Affiliates;
(vii) all Liabilities related to any fines or penalties imposed against the Company (or with respect to the Business or any Asset) by any Governmental or Regulatory Authority (including, without limitation, the Commission) prior to the Transfer Time; and
(viii) all other Liabilities of the Company other than the Assumed Liabilities.
Assumption of Assumed Liabilities (a) Except as expressly provided in Section 2.4(b), the Purchaser shall not assume, in connection with the transactions contemplated hereby, any liability or obligation of either Seller whatsoever, whether known, unknown, absolute, contingent or otherwise, and whether accrued or unaccrued.
(b) Subject to the foregoing Section 2.4(a), effective as of the Closing Date, the Purchaser shall assume the following liabilities and obligations of the Sellers arising out of the use, ownership or operation of the Business, the Facilities or the other Assets (collectively, the “Assumed Liabilities”):
(i) the obligations of the Sellers under (x) each Assumed Contract, related to the rights under each Assumed Contract assigned to the Purchaser under the Assignment and Assumption Agreement, (y) each JWWTP Agreement to the extent assigned to the Purchaser under the Assignment (JWWTP Agreements) and (z) each License included in the Assets required to be performed on or after the Closing Date;
(ii) all accounts payable, accrued expenses and other current liabilities of the Sellers related to the Business and accrued or existing as of the Closing Date, but only to the extent included in the determination of Final Net Working Capital;
(iii) all liabilities and obligations, known or unknown, relating to, resulting from, arising out of or in connection with, directly or indirectly, (A) events that occur, (B) services performed or products manufactured or sold, or (C) the ownership, operation or use of the Business and the Assets, in each case, from and after the Closing;
(iv) liabilities and obligations relating to or arising from physical or bodily injuries to, or damage to the property of, third parties that occur from and after the Closing to the extent caused by the physical condition of the Assets (which are being transferred as-is, where-is);
(v) liabilities arising in connection with any severance plan established by the Purchaser on or after the Closing Date; and
(vi) liabilities under any of the CBAs or any other collective bargaining agreement or other labor arrangement, including any grievances, to the extent arising from any act or omission after the Closing.
Excluded Assets and Liabilities (a) Notwithstanding Section 1.2 above, the Purchased Assets shall not include the following assets (collectively, the “Excluded Assets”):
(i) all unrestricted cash of Seller as of Closing;
(ii) all accounts receivable of Seller for completed work as of Closing;
(iii) Contracts, including Intellectual Property Agreements, that are not Assigned Contracts (the “Excluded Contracts”);
(iv) all employee benefit plans and assets and liabilities attributable thereto;
(v) the assets, properties and rights specifically excluded by Buyer as permitted by this Agreement; and
(vi) the rights which accrue or will accrue to Seller under this Agreement and the Ancillary Documents.
(b) Notwithstanding any provisions of this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever (the “Excluded Liabilities”) except liabilities relating solely to the conduct of the Business by Buyer after the Closing under the Assigned Contracts (the “Assumed Liabilities”). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy, including (without limitation) all Pre-Closing Tax Period Liabilities.
(c) After the Closing, Seller shall continue to discharge in a timely manner all of Seller’s Liabilities and obligations including, but not limited to, Liabilities and obligations disclosed in or pursuant to this Agreement.