Certain Limitations on Remedies. (a) All representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014, except the warranties and representations contained in (i) Sections 5.1, 5.2, 5.3, and 5.4 shall survive indefinitely, (ii) Sections 5.18, 5.19, and 5.21 (other than Section 5.21(a)) shall survive until the third anniversary of the Closing Date, and (iii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, shall survive until sixty (60) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes). Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE 9 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE 9. (b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(b)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 (the “Basket Amount”); provided, however, that in the event that such Losses exceed the Basket Amount, the Seller shall fully indemnify the applicable Purchaser Indemnified Party for all Losses incurred by such Purchaser Indemnified Party subject to indemnification obligations of the Seller pursuant to Section 9.1(a), including the $500,000 applied to the Basket Amount. Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) any intentional breach by the Seller of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25. (c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(c)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(f) or 9.1(g) unless and until the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000. (d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(d)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a) (other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25), an amount equal to 5% of the Purchase Price in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the Cap: (i) any intentional breach by the Seller of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), (d), (e), or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
Appears in 1 contract
Certain Limitations on Remedies. (a) All representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014the twenty-four (24) month anniversary of the Closing Date, except the warranties and representations contained in (i) Sections 5.14.1, 5.24.2, 5.34.3, 4.4 and 5.4 4.7(a) shall survive indefinitely, (ii) Sections 5.18, 5.19, 4.17 and 5.21 (other than Section 5.21(a)) 4.19 shall survive until the third seventh anniversary of the Closing Date, and (iii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, Section 4.22 shall survive until sixty thirty (6030) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes). Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE 9 Article 10 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE 9Article 10.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(b10.6(b)), the Seller Shareholders shall not be liable to the Purchaser Parent Indemnified Parties under Section 9.1(a10.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.14.1, 5.24.2, 5.34.4, 5.44.7(a), 5.21(a) 4.17, 4.19 and 5.254.22, unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Parent Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 250,000 (the “Basket Threshold Amount”); provided, however, that in the event that such Losses exceed the Basket Threshold Amount, the Seller Shareholders shall fully indemnify the applicable Purchaser Parent Indemnified Party for all Losses incurred by such Purchaser Parent Indemnified Party subject to indemnification obligations of the Seller Shareholders pursuant to Section 9.1(a), including the $500,000 applied to the Basket Amount. Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) any intentional breach by the Seller of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
(c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(c)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(f) or 9.1(g) unless and until the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000.
(d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(d)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a10.1(a) (other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.14.1, 5.24.2, 5.34.4, 5.44.7(a), 5.21(a4.17, 4.19 and 4.22), in excess of the $250,000 applied to the Threshold Amount. Notwithstanding the foregoing, the Threshold Amount shall not apply to Losses in connection with indemnification under Sections 10.1(f) and 5.25(g) or relating to the representations in Sections 4.1, 4.2, 4.4, 4.7(a), an 4.17, 4.19 or 4.22, or any payment required to be made by the Shareholders under Section 3.4 or claims relating thereto.
(c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 10.6(c)), the Shareholders shall not be liable to the Parent Indemnified Parties under Section 10.1 to the extent the amount equal of Losses to 5% of be paid to the Purchase Price Parent Indemnified Parties, in the aggregate, pursuant to Section 10.1 exceeds $13,600,000 in the aggregate (the “Cap Amount”). Notwithstanding .
(d) The parties agree that the foregoingIndemnity Escrow Fund shall serve as the sole and exclusive source of funding for any indemnification obligations of the Shareholders under this Article 10 (other than Section 10.2), and any indemnity payment due to the Cap Amount Parent under this Article 10 (other than Section 10.2) shall not apply to Losses be made solely from the Indemnity Escrow Fund in connection accordance with the following itemsterms of the Escrow Agreement. The parties agree that, in accordance with Section 3.3(b) hereof, any amount remaining in the Indemnity Escrow Fund upon satisfaction of all claims for indemnification pending and such Losses the final termination of the Escrow Agreement shall not be counted towards the Cap: (i) any intentional breach by the Seller of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), (d), (e), or relating paid to the representations Shareholders as Merger Consideration in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25accordance with the Escrow Agreement.
Appears in 1 contract
Certain Limitations on Remedies. (a) All representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014, except the warranties and representations contained in (i) Sections 5.1, 5.2, 5.3, and 5.4 shall survive indefinitely, (ii) Sections 5.18, 5.19, and 5.21 (other than Section 5.21(a)) shall survive until the third anniversary of the Closing Date, and (iii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, shall survive until sixty (60) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes). Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE 9 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE 9.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of proviso set forth in this Section 9.5(b)sentence), (i) neither the Seller Sellers and their respective affiliates, successors and assigns nor the Interestholders and their respective successors and assigns shall be liable hereunder to Xxxxxx or XXXXX for any Losses incurred by Xxxxxx or RRLLC due to, arising out of, or in connection with, a breach of any of the representations, warranties, covenants or agreements made by the Sellers and/or the Interestholders in Sections 3.01 thru 3.03, 4.01 thru 4.07, 4.09 thru 4.19, 6.01 thru 6.03, 6.05 and 6.07 (“Limited Losses”) until the Limited Losses incurred by Xxxxxx or XXXXX shall exceed in the aggregate one hundred thousand dollars ($100,000) (the “Basket Exclusion”), in which event they shall be liable for all such Limited Losses in accordance with the provisions of Section 9.01 herein; and (ii) Xxxxxx and RRLLC and their respective affiliates, successors and assigns shall not be liable hereunder to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of Interestholders for any misrepresentation or breach Losses arising out of, or omission fromin connection with a breach of any of the representations, warranties, covenants or agreements made by Xxxxxx or XXXXX in Sections 5.01 thru 5.07 or Section 6.05 until the Losses incurred by the Interestholders shall exceed in the aggregate the Basket Exclusion, in which event they shall be liable for all such Losses in accordance with Section 9.02 herein.
(b) The aggregate amount required to be paid by the Sellers and the Interestholders on account of any representation and all breaches of the representations or warranty warranties contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) 4.01 thru 4.07 and 5.25, unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 Sections 4.09 thru Section 4.19 (the “Basket AmountInterestholder Covered Sections”), including any Third Party Claims related to such Interestholder Covered Sections, shall not exceed six million five hundred fifty thousand dollars ($6,550,000) (the “Cap”); provided, however, that in and the event that such Losses exceed the Basket Amount, the Seller shall fully indemnify the applicable Purchaser Indemnified Party for all Losses incurred aggregate amount required to be paid by such Purchaser Indemnified Party subject to indemnification obligations Xxxxxx and RRLLC on account of a breach of any of the Seller pursuant to Section 9.1(arepresentations or warranties contained in Article V (the “Xxxxxx Covered Sections”), including the $500,000 applied any Third Party Claims related to the Basket Amount. Notwithstanding the foregoingsuch Xxxxxx Covered Sections, the Basket Amount shall not apply to Losses in connection with exceed the following items: (i) any intentional breach by the Seller of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25Cap.
(c) Notwithstanding anything The sole remedy for a breach of any of the representations and warranties of any of the Interestholder Covered Sections, including any Third Party Claims related to such Interestholder Covered Sections, or the contrary Xxxxxx Covered Sections, including any Third Party Claims related to such Xxxxxx Covered Sections, shall be as set forth in this Agreement (but subject to the terms of this Section 9.5(c))Article IX, the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(f) or 9.1(g) unless and until the Loss incurred by a Purchaser Indemnified Party except for any particular matter exceeds $25,000claims based upon fraud or intentional misconduct.
(d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(d)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a) (other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25), an amount equal to 5% of the Purchase Price in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the Cap: (i) any intentional breach by the Seller of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), (d), (e), or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
Appears in 1 contract
Samples: Asset Purchase Agreement (Rodman & Renshaw Capital Group, Inc.)
Certain Limitations on Remedies. (a) All representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014the second (2nd) anniversary of the Closing Date, except the warranties and representations contained in (i) Sections 5.1, 5.2, 5.3, 5.4, 5.7, 5.8(a), 5.13, 5.23 and 5.4 shall survive indefinitely, (ii) Sections 5.18, 5.19, and 5.21 (other than Section 5.21(a)) 5.31 shall survive until the third anniversary of the Closing Date, and thirty (iii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, shall survive until sixty (6030) days after the longer of the expiration of all applicable statutes of limitations (including any amendments extending said statutes), and the latest date by law that any Person could bring a claim related to matters described by such sections of this Agreement, as a matter of law. Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE 9 Article 10 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE 9Article 10.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(b10.6(b)), the Seller Sellers shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) 10.1 or Section 10.2, as the case may be, other than as a result of any misrepresentation or breach of, or omission from, of any representation or warranty contained in Sections 5.1, 5.25.23, 5.35.28, 5.4, 5.21(a) and 5.255.30 or 5.31, unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 50,000 (the “Basket Amount”); provided, howevermoreover, that in the event that such Losses exceed the Basket Amount, the Seller Sellers shall fully only be liable to indemnify the applicable Purchaser Indemnified Party for all Losses incurred by such Purchaser Indemnified Party subject to indemnification obligations of the Seller Sellers pursuant to Section 9.1(a10.1 or Section 10.2, as the case may be (other than as a result of any misrepresentation or breach of any representation or warranty contained in Sections 5.1, 5.23, 5.28, 5.30 or 5.31), including the $500,000 applied to that is greater than the Basket Amount, up to, and not exceeding, the Cap Amount. Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) fraud or any intentional breach by the Seller Sellers of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
(c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(c10.6(c)), the no Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(f) 10.1 or 9.1(g) unless and until Section 10.2 , as the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000.
(d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(d))case may be, the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, of any representation or warranty contained in Sections 5.1, 5.25.23, 5.35.28, 5.4, 5.21(a) and 5.255.30 or 5.31, to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a) 10.1 or Section 10.2, as the case may be (other than as a result of any misrepresentation or breach of, or omission from, of any representation or warranty contained in Sections 5.1, 5.25.23, 5.35.28, 5.4, 5.21(a) and 5.255.30 or 5.31), an amount equal to 5% of exceeds the Purchase Price in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, (i) the Church shall not be liable to the Purchaser Indemnified Parties under Section 10.2 to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 10.2 exceeds the Church’s ratable allocation of the aggregate Purchase Price as set forth on Schedule A, and (ii) the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the Cap: (i) fraud or any intentional breach by the Seller Sellers of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), (d), (e), or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ebix Inc)
Certain Limitations on Remedies. (a) All representations and warranties of the parties Parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014for twelve (12) months after the Closing Date, except the warranties and representations contained in (i) Sections 5.1, 5.2, 5.3, 5.4, 5.12 and 5.4 shall survive indefinitely, (ii) Sections 5.18, 5.19, and 5.21 (other than Section 5.21(a)) 5.22 shall survive until the third anniversary earliest of the Closing Date, and (iiii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, shall survive until sixty thirty (6030) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes). Unless a specified period is set forth in this Agreement or in a Transaction Document , (in which event such specified period will control)ii) the final payment of any Contingent Merger Consideration, all agreements and covenants contained in this Agreement and in any Transaction Documents will survive (iii) thirty (30) months after the Closing and remain in effect indefinitelyDate. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE 9 Article IX has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE 9Article IX.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(b)), the Seller Shareholders shall not be liable to the Purchaser Parent Indemnified Parties under Section 9.1(a) (other than as a result of any misrepresentation or breach of, or omission from, of any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(aand 5.22 or the breach of the covenant set forth in Section 3.5(c)) and 5.25, unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Parent Indemnified Parties, in the aggregate, Parties as a result thereof exceed, in the aggregate, $500,000 100,000 (the “Basket Amount”); provided, however, that in the event that such Losses exceed the Basket Amount, the Seller Shareholders shall fully only be liable to indemnify the applicable Purchaser any Parent Indemnified Party for all Losses incurred by such Purchaser Indemnified Party subject to indemnification obligations in excess of the Seller pursuant to Section 9.1(a), including the $500,000 applied to the Basket Amount. Amount Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) any intentional breach by the Seller of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating to the representations warranty contained in Sections 5.1, 5.2, 5.35.3 or 5.22, 5.4and the Basket Amount shall not apply to any Losses resulting from fraud or any intentional breach by the Company of any representation or warranty contained in this Agreement. Notwithstanding anything to the contrary in this Agreement, 5.21(athe liability of any Shareholder to indemnify any Parent Indemnified Party shall in no event exceed the lesser of (i) and 5.25such Shareholder’s Pro Rata Share of the Escrow Amount plus any portion of the Contingent Merger Consideration actually paid to such Shareholder, or (ii) such Shareholder’s Pro Rata Share multiplied by $2,210,000; provided, however, that, in the event of Losses resulting from fraud or intentional breach by either the Company or any Shareholder, the maximum recovery by Parent from each Shareholder shall be the Shareholder’s Pro Rata Share of the Merger Consideration, it being understood that in the event of Losses resulting from fraud or intentional breach by any Shareholder, Parent may seek recovery for such Losses solely from such Shareholder.
(c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(c)), the Seller Parent and Merger Sub shall not be liable to the Purchaser any Shareholder Indemnified Parties under Section 9.1(f) or 9.1(g9.2(a) unless and until the Loss amount of Losses incurred by a Purchaser all Shareholder Indemnified Party Parties exceeds in the aggregate the Basket Amount, provided, however, that in the event that such Losses exceed the Basket Amount, Parent and Merger Sub shall only be liable to indemnify the applicable Shareholder Indemnified Parties for all Losses incurred in excess of the Basket Amount up to, and not exceeding, the Merger Consideration (the “Parent Liability Cap”). Notwithstanding the foregoing, the Basket Amount shall not apply to any particular matter exceeds $25,000breach of any representation or warranty contained in Sections 6.1, 6.2, 6.3, 6.5, or 6.9, and neither the Basket Amount nor the Parent Liability Cap shall apply to any Losses in connection with fraud or any intentional breach by Parent or Merger Sub of any representation or warranty.
(d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms First Claim against Escrow Account; Parent Right of this Section 9.5(d)), the Seller shall not be liable to the Purchaser Set Off. All claims by Parent Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach shall first be satisfied from the Escrow Amount. In addition to, and not in limitation of, Parent Indemnified Parties’ rights to make claims against the Escrow Amount, in the event that the Escrow Amount is not sufficient to satisfy any and all amounts for which Shareholders are required to indemnify Parent Indemnified Parties pursuant to Sections 9.1 or omission from, 9.1A above (including any representation or warranty claims for breaches of the representations and warranties contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a5.12 and 5.22 which arise after the expiration of the Escrow Account) and 5.25(an “Excess Claim”), Parent shall have the right to set off with respect to any Shareholder the unpaid portion of such Excess Claim (but only to the extent not recovered against the Escrow Amount) against any Contingent Merger Consideration due and payable to such Shareholder, if any, as further provided in Section 9.5(e) below. The amount of Losses paid such set off shall be determined in accordance with Sections 9.3 or 9.4 above. The assertion of such right of set off by Parent in good faith will not alone constitute a breach of this Agreement or any other agreement between the Parties. For clarification, nothing in the preceding sentence shall in any way limit the Shareholders’ right to the Purchaser Indemnified Parties, in Contingent Merger Consideration beyond any actual Losses for which the aggregate, Shareholders are actually liable pursuant to Section 9.1(a) (other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25), an amount equal to 5% of the Purchase Price in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the Cap: (i) any intentional breach by the Seller of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), (d), (e), or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25this Article IX.
Appears in 1 contract
Samples: Merger Agreement (Ebix Inc)
Certain Limitations on Remedies. (a) All representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014the expiration of the Earn-Out Period, except the warranties and representations contained in (i) Sections 5.16.3, 5.26.6(a), 5.3, 6.11 and 5.4 6.20 shall survive indefinitely, (ii) Sections 5.18, 5.19, and 5.21 (other than Section 5.21(a)) shall survive until for the third anniversary of the Closing Date, and (iii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, shall survive until sixty (60) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes). Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE Article 9 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE Article 9.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(b)), the Seller Company and the Shareholders shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) 9.1, as the case may be, other than as a result of any misrepresentation or breach of, or omission from, of any representation or warranty contained in Sections 5.16.6(a), 5.26.11, 5.36.20, 5.4, 5.21(a) and 5.256.24 or 6.27, unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 100,000 (the “Basket Amount”); provided, howevermoreover, that in the event that such Losses exceed the Basket Amount, the Seller Shareholders shall fully only be liable to indemnify the applicable Purchaser Indemnified Party for all Losses incurred by such Purchaser Indemnified Party subject to indemnification obligations of the Seller Shareholders pursuant to Section 9.1(a9.1, as the case may be (other than as a result of any misrepresentation or breach of any representation or warranty contained in Sections 6.6(a), including the $500,000 applied to 6.11, 6.20, 6.24 or 6.27), that is greater than the Basket Amount, up to, and not exceeding, the Cap Amount. Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) fraud or any intentional breach by the Seller Shareholders of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
(c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(c)), neither the Seller Company nor any Shareholder shall not be liable to the Purchaser Indemnified Parties under Section 9.1(f) or 9.1(g) unless and until 9.1, as the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000.
(d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(d))case may be, the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, of any representation or warranty contained in Sections 5.16.6(a), 5.26.11, 5.36.20, 5.4, 5.21(a) and 5.256.24 or 6.27, to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a) 9.1, as the case may be (other than as a result of any misrepresentation or breach of, or omission from, of any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.256.6(a), an amount equal to 5% 6.11, 6.20, 6.24 or 6.27), exceeds fifty percent (50%) of the Purchase Price actually paid to the Company in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, (i) no Shareholder shall be liable to the Purchaser Indemnified Parties under Section 9.1 to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1 exceeds such Shareholder’s Proportionate Share of the Cap Amount, and (ii) the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the Cap: (i) fraud or any intentional breach by the Seller Company or any of the Shareholders of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), .
(d)) Notwithstanding any other provision of this Agreement to the contrary, (e), in the event the Purchaser makes an indemnity claim arising out of an alleged infringement of any third party’s rights by the Intellectual Property acquired by the Purchaser from the Company or relating to a breach of the representations in Sections 5.1Section 6.11, 5.2then before such claim must be satisfied by monetary compensation from the Company or the Shareholders, 5.3, 5.4, 5.21(athe Company and the Shareholders shall first be notified in writing by the Purchaser of such alleged infringement and be given a period of up to thirty (30) days after such notification to either remedy the alleged infringement or propose a plan acceptable to Purchaser within such period to remedy such infringement; provided that the period that such remedy is being carried out shall toll the period during which a Purchaser indemnification claim may be made for the underlying infringement; and 5.25provided further that any such remedy must be acceptable to Purchaser in its discretion.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ebix Inc)
Certain Limitations on Remedies. (a) All The representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014the Expiration Date, except the warranties and representations contained in (i) Sections 5.1, 5.2, 5.3, the matters referenced in Section 10.1(a)(ii) through (x) and 5.4 shall survive indefinitely, (ii) Sections 5.18, 5.19, the representations and 5.21 (other than Section 5.21(a)) warranties set forth in Article 5 shall survive until the third anniversary of the Closing Date, and thirty (iii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, shall survive until sixty (6030) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes), and (ii) the representations and warranties contained in Section 4.22 (Taxes) shall survive until thirty (30) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes) (and not less than six (6) years). Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and The covenants contained in this Agreement and in any the Transaction Documents will shall survive the Closing and remain in effect indefinitelyuntil fully performed. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE 9 Article 10 has been timely given prior to the expiration of the representation and warranty representation, warranty, or covenant upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE 9Article 10.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(b))Agreement, the Seller obligation to indemnify the Parent Indemnified Parties shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, arise unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Parent Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 one-half of one percent (0.5%) of the Base Purchase Price (the “Basket”) (at which point, the Parent Indemnified Parties shall be entitled to indemnification for all Losses that exceed one-quarter of one percent (0.25%) of the Base Purchase Price (the “Deductible”); provided, that neither the Basket Amountnor the Deductible shall apply to indemnification obligations or Losses with respect to the matters referenced in Section 10.1(a)(ii) through (x).
(c) For purposes of determining the amount of any Losses with respect to any breach of any representation, warranty or covenant for purposes of indemnification under this Article 10 (but not whether any such breach has occurred), any qualification or limitation of a representation, warranty or covenant by reference to materiality of matters stated therein or as to matters having or not having “Material Adverse Effect,” “materiality” or words of similar effect, shall be disregarded. The indemnification obligations of the Stockholders and Option Holders and the rights and remedies that may be exercised by a Parent Indemnified Party are part of the basis of the bargain contemplated by this Agreement and shall not be waived, limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Parent Indemnified Parties or any of their Representatives.
(d) The maximum amount that the Parent Indemnified Parties may recover from the Principal Equityholders pursuant to Section 10.1(a) above shall be limited to (i) an amount equal to the General Escrow Fund (“General Cap”) with respect to Losses under Section 10.1(a)(i); and (ii) an amount equal to the Merger Consideration actually paid or payable by the Parent with respect to Losses under Section 10.1(a)(ii) through (x); provided, however, that any claims based on or involving intentional Fraud or willful misconduct shall not be limited in amount, and only the Principal Equityholder(s) who committed or were involved in such intentional Fraud or willful misconduct shall be responsible for any Losses greater than the Merger Consideration actually paid or payable by the Parent.
(e) Distributions from the General Escrow Funds pursuant to this Section 10.6 shall be made by the joint written instructions executed by the Parent and the Representative delivered to the Escrow Agent. In the event that of a dispute regarding distributions from the General Escrow Funds, such Losses exceed dispute shall be resolved in accordance with Section 12.10, and the Basket Amount, the Seller Escrow Agent shall fully indemnify the applicable Purchaser Indemnified Party for all Losses incurred by such Purchaser Indemnified Party subject to indemnification obligations of the Seller make (or withhold) distributions pursuant to Section 9.1(a), including the $500,000 applied to the Basket Amountarbitration award in settlement of such dispute. Notwithstanding the foregoingforegoing or anything to the contrary contained herein, distributions to the Basket Amount Parent from the General Escrow Funds shall be deemed paid pro-rata by the Holders.
(f) The amount of any Losses for which indemnification is provided shall be reduced by any Tax benefit actually received in connection with such Loss.
(g) Parent and the Representative shall cooperate with each other in good faith with respect to resolving any Liability or minimizing Losses with respect to which one party is obligated to indemnify hereunder, including by making commercially reasonable efforts to resolve, mitigate or minimize any such Liability or Loss; provided, however, that no Person shall be required to initiate litigation or arbitration proceedings.
(h) In no event shall any Person obligated to indemnify another Person be responsible or liable for any Losses under this Article 10 that are (i) punitive damages; (ii) indirect damages that are not reasonably foreseeable under Delaware law; or (iii) speculative damages, except, in the case of any of the foregoing clauses (i), (ii) or (iii), to the extent that the Indemnifying Party has paid or must pay such damages to an unaffiliated third party in respect of a Third-Party Claim.
(i) The amount of any Loss for which indemnification is provided under this Article 10 shall be net of any amounts actually recovered by the Indemnified Party under insurance policies in effect less any reasonable out-of-pocket costs, fees or expenses (including any increased premiums) associated with obtaining such recovery. Each Indemnified Party agrees to use commercially reasonable efforts to seek recovery under such insurance policies; provided, however, that such commercially reasonable efforts shall not apply include any obligation to Losses commence or prosecute any litigation or other legal proceedings against any insurer.
(j) This Article 10 contains the sole and exclusive remedy of the parties in connection with the following items: Transactions, except (i) any with respect to intentional breach by the Seller of any representation Fraud or warrantywillful misconduct, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating with respect to the representations procedures and remedies in Sections 5.1, 5.2, 5.3, 5.4, 5.21(aSection 3.6 and Section 3.7; (iii) and 5.25.
(c) Notwithstanding anything with respect to the contrary set forth procedures and remedies as to Tax matters in this Agreement Article 11; or (but subject iv) the rights of the parties to the terms of this Section 9.5(c))injunctive relief, the Seller shall not be liable to the Purchaser Indemnified Parties specific performance or other equitable rights or remedies under Section 9.1(f) or 9.1(g) unless 12.10(g); provided, that the parties acknowledge and until agree that no party shall seek to rescind the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000Transaction from and after Closing.
(d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(d)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a) (other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25), an amount equal to 5% of the Purchase Price in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the Cap: (i) any intentional breach by the Seller of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), (d), (e), or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
Appears in 1 contract
Certain Limitations on Remedies. (a) All representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30, 2014, except the warranties and representations contained in (i) Sections 5.1, 5.2, 5.3, and 5.4 shall survive indefinitely, (ii) Sections 5.18, 5.19, and 5.21 (other than Section 5.21(a)) shall survive until the third anniversary of the Closing Date, and (iii) Sections 5.21(a) and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, shall survive until sixty (60) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes). Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE 9 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE 9.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of proviso set forth in this Section 9.5(b)sentence), the Seller shall not be liable hereunder to the Purchaser Indemnified Parties under Section 9.1(a) other than Buyer as a result of any misrepresentation or breach of, or omission from, in any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 (the “Basket Amount”); provided, however, that in the event that such Losses exceed the Basket Amount, the Seller shall fully indemnify the applicable Purchaser Indemnified Party for all Losses incurred by such Purchaser Indemnified Party subject to indemnification obligations of the representations or warranties of Seller pursuant to Section 9.1(a), including the $500,000 applied to the Basket Amount. Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) any intentional breach by the Seller of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), (e), and (f) or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25.
(c) Notwithstanding anything to the contrary set forth in this Agreement (but subject or in any Schedule hereto), except to the terms extent that the Losses incurred by the subject party as a result of this Section 9.5(c)such misrepresentations shall exceed in the aggregate $75,000 (the "Basket Exclusion"), and then only to the Seller extent of such excess; provided however, that the Basket Exclusion shall not be liable apply to any breach of the Purchaser Indemnified Parties under representations and warranties contained in Section 9.1(f) 3.6. Notwithstanding the foregoing, when determining whether the Basket Exclusion has been satisfied, Losses relating to misrepresentations in any of the representations or 9.1(g) unless and until the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000.
(d) Notwithstanding anything to the contrary warranties of Seller set forth in this Agreement (but subject or any Schedule hereto) shall be measured without regard to any materiality qualifiers included in such representations or warranties.
(b) Except as set forth in Section 6.6, the aggregate amount required to be paid by Seller under this Article 6 shall not exceed $5,000,000.
(c) Except as set forth in Section 6.6, the indemnification provided for in this Article 6 shall be the sole and exclusive remedy and recourse for any and all claims relating to or arising out of any breach of this Agreement or the Transaction Documents or any obligation hereunder or thereunder by any party.
(d) Except as set forth in Section 6.6, any indemnification claim by Buyer or any Buyer Indemnified Party pursuant to Section 6.1 and Section 6.2 must be asserted by written notice of a claim on or prior to the terms date which is twelve (12) months after the Closing Date; provided that claims based on breaches of this Section 9.5(d)3.6, 7.1(d), 7.2 or 7.4 shall survive until the Seller expiration of the applicable statute of limitations.
(e) With respect to any Losses paid by an Indemnifying Party, the Indemnified Party shall not be liable assign or otherwise cooperate with the Indemnifying Party to pursue any claims against or otherwise recover such Losses from any other person or entity.
(f) Any Indemnified Party shall use reasonable efforts to collect the proceeds of any insurance which would have the effect of reducing a Losses (in which case such proceeds shall reduce such Losses) and, if indemnification payments have been received prior to the Purchaser Indemnified collection of such proceeds, shall remit to the Indemnifying Party or Parties under Section 9.1(athe amount of such proceeds (net of the cost of collection thereof) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25, to the extent the amount of Losses paid indemnification payments received in respect of such Losses.
(g) Any payment made to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a) (other than Buyer under this Article 6 shall be treated as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25), an amount equal to 5% reduction of the Purchase Price in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the Cap: (i) any intentional breach by the Seller of any representations or warranties, or (ii) indemnification under Sections 9.1(b), (c), (d), (e), or relating to the representations in Sections 5.1, 5.2, 5.3, 5.4, 5.21(a) and 5.25Price.
Appears in 1 contract
Certain Limitations on Remedies. (a) All representations and warranties of the parties hereto contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until June 30the later of (x) May 31, 20142014 and (y) thirtieth (30th) day following the finalization of the audit of the financial statements of Purchaser for the fiscal year ending December 31, 2013, except the warranties and representations contained in (i) Sections 5.1, 5.2, 5.3, 5.5 and 5.4 5.6 shall survive indefinitely, (ii) Sections 5.18, 5.19, and 5.21 (other than Section 5.21(a)) 5.18 shall survive until the third seventh anniversary of the Closing Date, and (iii) Sections 5.21(a) 5.16, 5.20 and 5.25, and any claim based on intentional breach or fraudulent misrepresentation, 5.25 shall survive until sixty (60) days after the expiration of all applicable statutes of limitations (including any amendments extending said statutes)) and (iv) any claim based on intentional breach or misrepresentation shall survive indefinitely. Unless a specified period is set forth in this Agreement or in a Transaction Document (in which event such specified period will control), all agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this ARTICLE Article 9 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this ARTICLE Article 9.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(b)), the Seller Selling Parties shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.45.5, 5.21(a) 5.6, 5.16, 5.17, 5.18, 5.20 and 5.25, 5.25 unless and until (i) the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000 and (ii) Losses incurred by all Purchaser Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $500,000 300,000 (the “Basket Amount”); provided, however, that in the event that such Losses exceed the Basket Amount, the Seller Selling Parties shall fully indemnify the applicable Purchaser Indemnified Party for all Losses incurred by such Purchaser Indemnified Party subject to indemnification obligations of the Seller Selling Parties pursuant to Section 9.1(a), including the $500,000 300,000 applied to the Basket Amount. Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) any intentional breach by the Seller Selling Parties of any representation or warranty, or (ii) indemnification under Sections 9.1(c), (d), and (e), and (f) or relating to the representations in Sections 5.1, 5.2, 5.3, 5.45.5, 5.21(a) 5.6, 5.16, 5.17, 5.18, 5.20 and 5.25.
(c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(c)), the Seller shall not be liable to the Purchaser Indemnified Selling Parties under Section 9.1(f) or 9.1(g) unless and until the Loss incurred by a Purchaser Indemnified Party for any particular matter exceeds $25,000.
(d) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 9.5(d)), the Seller shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.45.5, 5.21(a) 5.6, 5.16, 5.17, 5.18, 5.20 and 5.25, to the extent the amount of Losses paid to the Purchaser Indemnified Parties, in the aggregate, pursuant to Section 9.1(a) (other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 5.1, 5.2, 5.3, 5.45.5, 5.21(a) 5.6, 5.16, 5.17, 5.18, 5.20 and 5.25), exceeds an amount equal to 510% of the Purchase Price in the aggregate (the “Cap Amount”). Notwithstanding the foregoing, the Cap Amount shall not apply to Losses in connection with the following items, and such Losses shall not be counted towards the CapCap Amount: (i) any intentional breach by the Seller Selling Parties of any representations or warranties, or (ii) indemnification under Sections 9.1(b9.1(c), (c), (d), d),and (e), or relating to the representations in Sections 5.1, 5.2, 5.3, 5.45.5, 5.21(a) 5.6, 5.16, 5.17, 5.18, 5.20 and 5.25.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the Selling Parties shall not be liable to the Purchaser Indemnified Parties under Section 9.1(a) unless and until the aggregate amount of Losses incurred by the Buyer Indemnified Parties with respect to a particular fact, event or occurrence and all other facts, events or occurrences arising from the same or similar circumstances or facts exceeds $60,000 (the “Threshold Amount”), and only claims in excess of the Threshold Amount shall be counted in determining whether the Basket Amount has been reached.
Appears in 1 contract
