Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with: (a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty); (b) any failure by Seller to perform or comply with any agreement made by it under this Agreement; (c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein; (d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and (e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 6 contracts
Samples: Asset Purchase Agreement (Cannabis Science, Inc.), Asset Purchase Agreement (X-Change Corp), Asset Purchase Agreement (Aprecia Inc)
Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four eighteen (2418) months after the Closing Date.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Corridor Communications Corp), Asset Purchase Agreement (Corridor Communications Corp), Asset Purchase Agreement (Amnis Systems Inc)
Indemnification by Seller. On the other terms and subject to the other conditions of this Article VII, from and after the Closing, Seller shall agrees to indemnify Buyer, its Affiliates and hold harmless Purchaser its and their respective Representatives (the “Buyer Indemnitees”) against, and shall reimburse Purchaser for hold each of them harmless from and against, any lossand all Losses suffered, liabilityincurred, claimpaid, damagesustained by, expense (includingor imposed upon, without limitation, costs any Buyer Indemnitee arising out of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection withresulting from:
(a) any inaccuracy in failure of any of the representations and warranties of representation or warranty made by Seller in Article IV of this Agreement to be true and correct in all respects (without giving effect to any “material”, “materially”, “materiality”, “Material Adverse Effect”, “material adverse effect”, “material adverse change” or similar qualification contained in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty warranty) on and as of the Closing Date as if made at and as of such time (for purposes of this clause (a)other than those made on a specified date, each schedule and exhibit to this Agreement which shall be deemed a representation true and warrantycorrect in all respects as of such specified date);
(b) any failure breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller or any of its Subsidiaries pursuant to perform this Agreement or comply with any agreement made by it under this AgreementTransaction Document (including, without limitation, any covenants, agreements or obligations contained in Section 6.16 of the Seller Disclosure Letter);
(c) any operations or business conducted, commitment made, service rendered or condition existing Excluded Asset or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;Excluded Liability; or
(d) any failure by Seller or any of its Subsidiaries, or claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with a creditor of Seller (or any person acting on of its behalf) in connection with Subsidiaries that any of the transactions contemplated herein; and
(e) Seller's failure them has failed, in each case, to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; providedprovisions of any bulk sales, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount bulk transfer or similar Laws of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datejurisdiction.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Joe's Jeans Inc.), Asset Purchase Agreement
Indemnification by Seller. Subject to the provisions of Section 11.6 below, after Purchaser or Seller, as the case may be, has filed and been denied a claim with any and all insurance carriers who has issued a policy that provides insurance coverage for the claim to either Purchaser, Seller or any related party to either Purchaser or Seller, including such instances where an insurer shall provide a defense with reservation of rights regarding coverage issues, Seller shall defend, indemnify and hold harmless Purchaser and each of Purchaser’s Affiliates, successors and assigns (Purchaser and such persons, collectively, “Purchaser’s Indemnified Persons”) and shall reimburse Purchaser for Purchaser’s Indemnified Persons for, from and against each and every demand, claim, loss (which shall include any lossdiminution in value), shortage, liability, claimjudgment, damage, cost and expense (includingincluding without limitation interest, without limitationpenalties, costs of investigation preparation and defense investigation, and the reasonable attorney's fees) , disbursements and expenses of attorneys, accountants and other professional advisors), whether known or diminution of value unknown, whether fixed or contingent, and whether accrued or unaccrued (collectively, "Damages") arising “Losses”), incurred by Purchaser’s Indemnified Persons, directly or indirectly, relating to, resulting from or in connection with:
arising out of (a) any material inaccuracy in any representation or warranty (whether or not Purchaser’s Indemnified Persons relied thereon or had knowledge thereof) contained in, or any breach or nonfulfillment of any representation, covenant, agreement or other obligation of Seller under this Agreement, any Schedule or Exhibit hereto, any Closing Document or any other certificate or document delivered or to be delivered pursuant hereto; (b) any material breach of any covenant with respect to the operation of the Business, or the ownership, possession, operation or use of the Assets or the Leased Premises, up to and including the Closing Date; (c) the value of Gift Certificates that are redeemed after the Closing Date as set forth in Section 9.13; (d) the material failure of the parties to comply with the provisions of any bulk sales or similar laws of any state having jurisdiction over the Assets or the transactions contemplated hereby; (e) any claims made by any Investor or those having any claims for equity ownership in any of the representations Seller or corporate shareholder or partnership shareholder of the Seller; (f) the discharge of obligations related to the Shared Liabilities; and warranties of Seller in this Agreement or in (g) any certificate delivered by Seller pursuant to this Agreement, Excluded Asset or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure liability not expressly assumed by Seller to perform or comply with any agreement made by it Purchaser under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller . Queyrouze shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to also indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four any Investor or those having any claims for equity ownership in any of the Seller or corporate shareholder or partnership shareholder of the Seller pursuant to an indemnity agreement in the form attached hereto as Exhibit J (24) months after the Closing Date“Indemnity Agreement”). The Indemnity Agreement and the indemnity obligations of Queyrouze with respect to claims made by Investors shall terminate if and when Queyrouze or Seller obtains releases from all of the Investors of any and all claims they may have against the Purchaser’s Indemnified Persons in form and substance acceptable to Purchaser, in its commercially reasonable discretion.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.)
Indemnification by Seller. In addition to any other rights and remedies that Purchaser may have, Seller shall indemnify and hold Purchaser, its stockholders, Affiliates and respective officers, directors, employees and agents, harmless Purchaser from and against, and shall reimburse Purchaser for it or them for, any loss, liability, claim, damage, expense Damages (including, without limitation, costs including pair- off fees and loss of investigation and defense and reasonable attorney's feesServicing Rights due to Early Payoff) incurred before or diminution after any Sale Date to the extent arising or resulting from the following (but not including same to the extent resulting from any acts or omissions of value (collectively, "Damages") arising from or in connection with:Purchaser):
(a) any inaccuracy in any misrepresentation made by Borrower, Seller or Seller’s employees, regardless of Seller’s knowledge of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)same;
(b) breach of any failure representation or warranty by Seller to perform or comply with any agreement made by it under contained in this Agreement, including, but not limited to, the Guides;
(c) the non-fulfillment or non-performance of any operations covenant, obligation, condition or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf required of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinthis Agreement including, but not limited to, the Guides;
(d) any claim by fraud in the origination of any person for brokerage Loan, whether or finder's fees not as a result of any act or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (omission of Seller, or any person acting on its behalfemployee, representative or any agent of Seller;
(e) any Loan that results in connection with an Early Payment Default, an Early Payoff or a First Payment Default;
(f) any of the transactions contemplated hereinrepurchase or indemnification demand by an Investor or Insurer; and
(eg) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made mortgage insurance rescission or indemnification demand by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datean Insurer.
Appears in 3 contracts
Samples: Correspondent Loan Purchase Agreement, Correspondent Loan Purchase Agreement, Correspondent Loan Purchase Agreement
Indemnification by Seller. 9.1.1 Subject to the other provisions of this Section 9, Seller shall agrees to indemnify and to hold each Purchaser Group Member harmless for, from and against any and all Losses incurred by such Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") Group Member to the extent arising from or in connection withrelating to, directly or indirectly:
(a) any inaccuracy in breach by Seller of any of the representations and warranties of Seller representations, warranties, covenants, obligations or agreements in this Agreement or in any certificate delivered by other Operative Agreement (except to the extent that the amount of the Loss relating to such breach was taken into account in determining the Adjusted Closing Net Working Capital); it being agreed that the determination of whether Seller pursuant to this Agreementhas breached a covenant, obligation or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement agreement shall be deemed a representation determined on an individual and warranty)not collective basis;
(b) any failure Newsprint Retained Obligation; or
(c) any Indemnified Tax.
9.1.2 Subject to the other provisions of this Section 9, Seller agrees to indemnify and to hold each Purchaser Group Member harmless for, from and against any and all Losses incurred by such Purchaser Group Member to the extent arising from or relating to, directly or indirectly:
(a) the Known Environmental Matters listed on Schedule 9.1.2;
(b) the violation by Seller or Apache of any Environmental Law or Permit issued pursuant to perform Environmental Law, on or comply with any agreement made by it under this Agreementprior to the Closing Date;
(c) any operations the presence of Hazardous Substances in the soil and/or groundwater at, on, under, within or business conductedmigrating from the Real Property, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf which exists prior to the Closing Date and gives rise to investigation and/or remediation under a requirement of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinapplicable Environmental Law;
(d) contamination at any claim offsite location resulting from the disposal of, or arranging for the disposal of, any Hazardous Substances used, generated or stored by any person for brokerage Seller with respect to the Newsprint Business or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller Apache (or any person acting on its behalfpredecessor entity of Apache) in connection with any respect to the Railway Business prior to the Closing Time; provided however, it is understood and agreed that this Section 9.1.2(d) is not intended to and shall not be construed to include offsite migration of contamination from the transactions contemplated hereinReal Property; and
(e) Seller's failure to comply any real property formerly owned, leased or operated by Seller in connection with the "Bulk Sales Laws" under Newsprint Business or Apache (or any predecessor entity of Apache) in connection with the Uniform Commercial Code; provided, however, that Railway Business.
9.1.3 (i) No Purchaser Group Member shall be entitled to any indemnification and Seller shall have no obligation not be required to indemnify and hold any Purchaser Group Member harmless with respect to any Losses arising from any breach by Seller of any of its representations and warranties in Section 9.1.1(a) (for Damages the avoidance of doubt, but not for any breach by Seller of its covenants, obligations or other agreements (other than Sections 9.1.2(a), 9.1.2(b) and 9.1.2(c) as set forth below), and excluding the representations and warranties in the last sentence of Section 3.22.1) or under Section 9.1.2(a), (b) and (c) until the aggregate Damages exceed $20,000 andand unless such Losses exceed, in such eventthe aggregate, one percent (1%) of the Adjusted Purchase Price (without giving effect to Section 9.8) (the “Deductible Amount”), in which case Seller shall be liable only for the full portion of the amount of such Damagesexceeding the Deductible Amount, and (ii) Seller' the aggregate liability amount that the Purchaser Group Members may claim and that Seller may be required to pay pursuant to this Agreement with respect to Losses arising from any breach by Seller of any of its representations and warranties in Section 9.1.1(a) (for Damages shall in no event exceed the Purchase Considerationavoidance of doubt, but not for any breach by Seller of its covenants, obligations or other agreements (other than Sections 9.1.2(a), 9.1.2(b) and 9.1.2(c) as set forth below), and excluding the representations and warranties in the last sentence of Section 3.22.1) and pursuant to Section 9.1.2(a), (iiib) Seller and (c) shall have no obligation not exceed an aggregate amount equal to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four seventeen and one-half percent (2417.5%) months after of the Closing Date.Adjusted Purchase Price (without giving effect to
Appears in 3 contracts
Samples: Asset and Stock Purchase Agreement (Catalyst Paper Corp), Asset and Stock Purchase Agreement (AbitibiBowater Inc.), Asset and Stock Purchase Agreement (AbitibiBowater Inc.)
Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's ’s fees) or diminution of value (collectively, "“Damages"”) arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's ’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's ’s failure to comply with the "“Bulk Sales Laws" ” under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' ’ aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 3 contracts
Samples: Asset Purchase Agreement (WOD Retail Solutions, Inc.), Asset Purchase Agreement (National Energy Services Co Inc), Asset Purchase Agreement (National Energy Services Co Inc)
Indemnification by Seller. From and after the Closing, Seller shall indemnify hereby agrees to indemnify, defend and hold harmless Purchaser, its Affiliates and, if applicable, their respective directors, officers, stockholders, partners, attorneys, accountants, agents, employees, heirs, successors and assigns (the “Purchaser Indemnified Parties” and, collectively with the Seller Indemnified Parties, the “Indemnified Parties”) from, against and shall reimburse in respect of any Losses actually incurred by any of the Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising Indemnified Parties resulting from or in connection with:
arising out of (a) any inaccuracy in breach of any of the representations and warranties of Seller in this Agreement representation or in any certificate delivered warranty made by Seller pursuant to contained in this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) the breach of any failure by covenant or agreement of Seller to perform or comply with any agreement made by it under contained in this Agreement;
, (c) any operations Excluded Liability or business conductedExcluded Asset, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any Special Environmental Liability. For purposes of clause (a) of the immediately preceding sentence, all “materiality,” “Material Adverse Effect” and similar materiality qualifiers contained in such representations and warranties shall be disregarded (other than those set forth in Sections 5.06 (Financial Statements), 5.09(a) (Contracts) and 5.11(a) (Intellectual Property)). The Purchaser Indemnified Parties shall not be entitled to assert any indemnification claim by pursuant to clause (a) of this Section 12.03 (i.e., for breach of any person for brokerage representation or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been warranty made by any such person with Seller (or any person acting on its behalfcontained in this Agreement) in connection with any after the expiration of the transactions contemplated herein; and
applicable survival period set forth in Section 12.01(a) (eexcept to the extent provided therein) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in each such eventcase, for any such claim shall be irrevocably and unconditionally released and waived by the full amount of Purchaser Indemnified Parties upon such Damagesexpiration, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made whether or not a longer period would be permitted by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Dateapplicable Law.
Appears in 3 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement (Cabot Corp), Sale and Purchase Agreement (Cabot Corp)
Indemnification by Seller. Subject to the other terms and conditions of this ARTICLE VIII, and subject to appropriation of the requisite funds by the Assembly of Seller, Seller shall shall, to the furthest extent permitted by applicable Law, indemnify and hold harmless Purchaser defend Buyer and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs each and all of investigation and defense and reasonable attorney's fees) or diminution of value its Representatives (collectively, "Damages"the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising from out of, with respect to or in connection withby reason of:
(a) any inaccuracy in or breach of any of the representations and or warranties of Seller contained in this Agreement Agreement, the Ancillary Documents, or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Seller pursuant to this Agreement, or any actions, omissions certificate or state instrument delivered by or on behalf of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit Seller pursuant to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing Excluded Asset or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinExcluded Liability;
(d) any claim the Assumed Environmental Liabilities, to the extent, if any, that Losses incurred by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) Buyer in connection with any the same prior to the tenth (10th) anniversary of the transactions contemplated herein; and
(e) Seller's failure to comply with Closing Date exceed the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages$25,000,000 in the aggregate, (ii) Seller' aggregate liability for Damages shall but not in no any event exceed including any Environmental Claims, Liabilities, or Losses arising directly out of any asset retirement obligations or arising solely by reason of Buyer’s ownership and operation of the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after Purchased Assets following the Closing Date. Nothing in this Section 8.02 shall preclude Buyer from commencing litigation to enforce the provisions of this Section 8.02 and enforcing any related judgement if the requirements for commencement of litigation in this ARTICLE VIII have otherwise been satisfied.
Appears in 3 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Indemnification by Seller. Subject to the other terms and conditions of this ARTICLE VIII, Seller shall indemnify and hold harmless Purchaser defend each of Buyer and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation its Affiliates and defense and reasonable attorney's fees) or diminution of value its respective Representatives (collectively, "Damages"the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising from out of, with respect to or in connection withby reason of:
(a) any inaccuracy in or breach of any of the representations and or warranties of Seller contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller pursuant to this AgreementAgreement (other than in respect of Section 3.23, it being understood that the sole remedy for any such inaccuracy in or any actionsbreach thereof shall be pursuant to ARTICLE VI), omissions or state as of facts inconsistent with any the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for purposes representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of this clause (a), each schedule and exhibit which will be determined with reference to this Agreement shall be deemed a representation and warrantysuch specified date);
(b) any failure breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to perform this Agreement (other than any breach or comply with violation of, or failure to fully perform, any agreement made by covenant, agreement, undertaking or obligation in ARTICLE VI, it under this Agreementbeing understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE VI);
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims Broker Fees for which Purchaser Seller is required to indemnify Seller pursuant to Section 7.2 hereinobligated;
(d) any claim matter disclosed by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with the Seller in Disclosure Schedules not provided at the execution of this Agreement;
(e) Actions against Seller or any person acting on its behalf) in connection with any of Acquired Company pending at the transactions contemplated hereinClosing Date, or arising due to facts, circumstances or events occurring prior to the Closing Date; and
(ef) Seller's failure Environmental, Health and Safety Requirements pending against the Seller or any Acquired Company at the Closing Date, or arising due to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; providedfacts, however, that (i) Seller shall have no obligation circumstances or events occurring prior to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Camber Energy, Inc.), Membership Interest Purchase Agreement (Viking Energy Group, Inc.), Membership Interest Purchase Agreement (Camber Energy, Inc.)
Indemnification by Seller. Seller shall indemnify hereby agrees to indemnify, defend and hold save harmless Purchaser and shall reimburse Purchaser for any lossits directors, liabilityofficers, claimemployees, damageaffiliates, expense (includingagents, without limitationadvisors, costs of investigation representatives, shareholders and defense and reasonable attorney's fees) or diminution of value assigns (collectively, "Damages"the “Purchaser Indemnified Parties”) from, against and in respect of any and all Losses incurred or suffered by any Purchaser Indemnified Party arising from out of, or in connection with:related to, the following (each, a “Purchaser Claim”):
(a) any misrepresentation, inaccuracy or breach of any representation or warranty made by the Seller in any of the representations and warranties of Seller in this Agreement Transaction Document or in any document, certificate or other instrument required to be delivered by the Seller pursuant to this Agreement, or under any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)Transaction Document;
(b) any failure breach or non-fulfillment by the Seller when required to perform be performed of any covenant or comply agreement made or to be performed by the Seller in any Transaction Document or in any agreement or instrument entered in connection with any agreement made by it under this AgreementTransaction Document;
(c) any operations fraud or business conductedintentional misrepresentation with respect to, commitment madeor intentional breach of, service rendered or condition existing or any action taken or omitted Transaction Document by or on behalf of the Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;; and
(d) the Retained Liabilities. Except as set forth in Section 6.5 with respect to third party Actions, in the event of any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any Purchaser Claim, Purchaser shall notify Seller and such person notice shall be in writing and shall describe with Seller reasonable specificity the nature and amount of such Purchaser Claim (or any person acting on its behalf) in connection with any a “Purchaser Notice of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial CodeClaim”); provided, however, that (i) any delay on the part of a Purchaser Indemnified Party in giving Seller a Purchaser Notice of Claim shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) not relieve Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser from its obligations under this Section 7.1 after twenty four (24) months after 6.1 except to the Closing Dateextent, if any, that Seller is materially prejudiced thereby. A Purchaser Notice of Claim may be delivered at any time during the applicable survival period for such claim as set forth in Section 6.3 of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (WaferGen Bio-Systems, Inc.), Asset Purchase Agreement (WaferGen Bio-Systems, Inc.)
Indemnification by Seller. Seller shall indemnify indemnify, defend and hold Purchaser harmless Purchaser from and shall reimburse Purchaser for any losslosses, liabilitydamages, claimdeficiencies, damageclaims, expense causes of action or expenses of any nature (including, but not limited to, reasonable attorneys’ fees and legal or other expenses associated with investigation, defense and discovery) suffered or incurred by Purchaser before or after the Transfer Date which result from:
(a) Any misrepresentation made by Seller in this Agreement, the Servicing Agreements or in any schedule, written statement or certificate furnished by Seller pursuant to this Agreement or the Servicing Agreements (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or the information included in connection with:the Exhibits hereto);
(ab) Any breach of a representation or warranty by Seller, or the non-fulfillment of any inaccuracy in any of the representations and warranties term, covenant, condition or obligation of Seller contained in this Agreement Agreement, the Interim Servicing Agreement, the Servicing Agreements or in any schedule, written statement or certificate delivered furnished by Seller pursuant to this Agreement, the Interim Servicing Agreement or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreementthe Servicing Agreements;
(c) any operations Any breach of a representation or business conductedwarranty in Section 4.14 hereof with respect to a Prior Servicer, commitment made, service rendered regardless of whether or condition existing or any action taken or omitted by or on behalf not Seller had knowledge of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinthe breach;
(d) any claim by any person for brokerage Any error in originating, closing, pooling or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with servicing any of the transactions contemplated herein; andMortgage Loans (including, without limitation, errors in determination of interest rate and monthly payment adjustments) prior to the Transfer Date including improper action or failure to act when required to do so;
(e) Any defect in any Mortgage Loan existing as of the Transfer Date (including those defects subsequently discovered the basis for which occurred on or prior to the Transfer Date), or as a result of any act or omission of Seller or a Prior Servicer prior thereto;
(f) Seller's ’s failure to (i) permit Purchaser to examine records, (ii) comply with the "Bulk Sales Laws" under provisions hereof or Purchaser’s reasonable instructions regarding the Uniform Commercial Codetransfer of Servicing or (iii) provide accurate information reasonably requested by Purchaser regarding the Mortgage Loans or the Servicing;
(g) Any expenses and losses on any VA Mortgage Loan that is a VA “No-bid”, including those Mortgage Loans resulting in buydowns, as of the second anniversary of the Transfer Date or any VA Mortgage Loan referred to an attorney for foreclosure action on or before the second anniversary of the Transfer Date which becomes a VA “No-bid”; or
(h) Litigation, proceedings, governmental investigations, orders, injunctions or decrees the basis for which occurred on or prior to the Transfer Date involving the Servicing or any of the Mortgage Loans or resulting from any of the items described in Section 10.01(a)-(g) above; provided, however, that Purchaser has taken all reasonable and appropriate actions to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses. Each party shall promptly notify the other of any litigation, proceedings, governmental investigations, orders, injunctions or decrees specified above (collectively, a “Claim”). Seller shall have the right to defend Purchaser against the Claim with counsel of its choice reasonably satisfactory to Purchaser. Purchaser may participate in the defense of any such Claim with co-counsel of its choice; provided, however, that counsel for Seller shall be lead counsel and the fees and expenses of Purchaser’s counsel shall be at the expense of Purchaser unless (i) Seller shall have no obligation has agreed in writing to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in pay such event, for the full amount of such Damagesfees and expenses, (ii) Seller' aggregate liability for Damages shall in no event exceed Seller has failed to assume the Purchase Consideration, defense and employ counsel as provided herein or (iii) a claim shall have been brought or asserted against Seller as well as Purchaser and Purchaser shall have been advised in writing by counsel that there may be one or more factual or legal defenses available to it that are in conflict with those available to Seller. Such co-counsel shall be at the expense of Seller; provided, however, that counsel for Seller shall have no obligation be lead counsel and Seller shall not be required to indemnify Purchaser pay the fees and expenses of more than one separate counsel. Seller shall not settle, compromise, decline to appeal or otherwise dispose of any Claim without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed, provided, however, that such consent shall not be required for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datea Claim involving less than $100,000.00.
Appears in 2 contracts
Samples: Mortgage Servicing Purchase and Sale Agreement, Mortgage Servicing Purchase and Sale Agreement (Hibernia Corp)
Indemnification by Seller. (a) Purchaser Claims. Seller shall indemnify will indemnify, defend and hold harmless Purchaser Purchaser, its Affiliates and shall reimburse Purchaser for any losseach of their officers, liabilitydirectors, claimemployees, damageattorneys, expense (including, without limitation, costs of investigation agents and defense successors and reasonable attorney's fees) or diminution of value assigns (collectively, "Damages") arising the “Purchaser Group”), from or and against any and all demands, suits, penalties, obligations, damages, claims, losses, liabilities, payments, costs and expenses (“Losses”), including reasonable legal, accounting and other expenses in connection withtherewith and costs and expenses incurred in connection with investigations and settlement proceedings, which arise out of, are in connection with or relate to, the following (collectively, “Purchaser Claims”), in each case, even if such Losses are caused by the sole, joint or xxxxxxxxxx xxxxxxxxxx, xxxxxx liability or other fault of any person included in the Purchaser Group or any other Person:
(ai) any breach or violation of any covenant, obligation or agreement of Seller set forth in this Agreement or the Ancillary Agreements;
(ii) any breach or inaccuracy in any of the representations and or warranties of made by Seller in this Agreement or the Ancillary Agreements, whether such representation or warranty is made as of the Effective Date or the Closing Date or in any certificate to be delivered by Seller pursuant to this Agreementhereto; provided that for purposes of determining the amount of Losses sustained or incurred thereby, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a)Section 7.1(a) only, each schedule such representations and exhibit to this Agreement warranties shall be deemed a representation and warranty)interpreted without giving effect to the words “material”, “materially”, “Material Adverse Effect”, or words of similar effect;
(biii) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conductedThird Party Claim relating to, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with or arising out of the ownership, operation or use of any of the transactions contemplated hereinTransmission Assets, to the extent relating to any period of time on or prior to the Closing Date; andor
(eiv) Seller's failure any other matter relating to comply with the "Bulk Sales Laws" under Transmission Assets, to the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation extent relating to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount any period of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation time on or prior to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Cleco Midstream Resources LLC), Purchase and Sale Agreement (Cleco Corp)
Indemnification by Seller. 10.2.1 Subject to the terms and conditions of this Article X, from and after (and contingent on) the Closing, the Seller shall indemnify indemnify, defend, and hold harmless Purchaser and shall reimburse Purchaser for any lossits Affiliates, liabilitythe Company and its Subsidiaries, claimand their respective equity owners, damagedirectors, expense managers, officers, employees and Representatives (includingand each of the heirs, without limitationexecutors, costs successors and assigns of investigation and defense and reasonable attorney's feesthe foregoing) or diminution of value (collectively, "Damages"all of the foregoing the “Purchaser Indemnified Parties”) arising from against any and all Damages incurred or in connection withsuffered by the Purchaser Indemnified Parties to the extent resulting from:
(a) any inaccuracy in or breach of any of the representations and warranties of Seller Fundamental Representations contained in this Agreement or in any certificate or instrument (solely with respect to such Seller Fundamental Representations) delivered by or on behalf of the Company or Seller pursuant to this Agreement, or Agreement (it being understood that both for purposes of determining the amount of any actions, omissions or state Damages and for purposes of facts inconsistent with any determining whether such representation or warranty has been breached, such representations and warranties shall be interpreted, in each case, without giving effect to any limitations or qualifications as to materiality as set forth therein (for purposes of this clause (a), each schedule and exhibit to this Agreement which shall be deemed to be deleted therefrom)) as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a representation and warrantyspecified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any failure breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Seller pursuant to perform or comply with any agreement made by it under this Agreement;; and
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf Damages resulting from a breach of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date4.8.3.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rackspace Technology, Inc.), Agreement and Plan of Merger (Rackspace Technology, Inc.)
Indemnification by Seller. Subject to the provisions of Sections 9.1(b) and 11.4, taking into account any amounts reflected in Effective Time Net Working Capital so as to avoid any duplication or double recovery by Buyer, from and after the Closing, Seller shall indemnify and indemnify, defend, hold harmless Purchaser and shall reimburse Purchaser for Buyer, the Acquired Companies, and Buyer’s, and each Acquired Company’s present and future directors, officers, employees, consultants, agents, shareholders, members and partners and each of the successors and assigns of any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value the foregoing (collectively, "Damages"“Buyer Indemnified Persons”) from and against any and all Covered Liabilities suffered or incurred by a Buyer Indemnified Person as a result of or arising from or in connection with:
out of (a) any inaccuracy in or breach of any of the representations and warranties representation or warranty of Seller in this Agreement or in any certificate delivered by Seller pursuant to this AgreementSeller’s Closing Certificate (without giving effect, or any actions, omissions or state for purposes of facts inconsistent calculating damages associated with any such representation or warranty (inaccuracy, but not for purposes of this clause (adetermining any such inaccuracy, to any qualifier as to materiality, material, material adverse effect, Material Adverse Effect or words of similar meaning set forth herein), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
; (b) any failure by Seller to perform breach or comply with nonperformance of any agreement made by it under or covenant on the part of Seller that is expressly set forth in this Agreement;
; (c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify and all Seller pursuant to Section 7.2 herein;
Taxes; (d) any claim by any person for brokerage Action (i) set forth on Schedule 4.2(e), other than Actions relating to the Offshore Legacy Assets only to the extent filed, or finder's fees or commissions or similar payments based upon any agreement events or understanding alleged conditions occurring, in each case, prior to have been made by any such person with Seller April 17, 2012 or (or any person acting on its behalfii) in connection with against any of the transactions contemplated hereinAcquired Companies or their respective assets or properties that (A) is based upon events or conditions occurring prior to the Effective Date, (B) is not described in the immediately preceding clause (i) and (C) is covered by insurance of Seller or its Affiliates; and
(e) Seller's failure any Royalties that have not been timely and fully paid and that are attributable to comply with the "Bulk Sales Laws" under Acquired Companies’ operation of any of their respective assets and properties during the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after period ending on the Closing DateDate other than those relating to the operation of the Offshore Legacy Assets on or prior to April 17, 2012; or (f) any fines or penalties imposed by any Governmental Authority and that are attributable to the Acquired Companies’ operation of any of their respective assets and properties during the period ending on the Closing Date other than those relating to the operation of the Offshore Legacy Assets on or prior to April 17, 2012.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Sandridge Energy Inc)
Indemnification by Seller. (a) Seller shall indemnify indemnify, defend and hold Purchaser, its affiliates and its and their respective directors, managers, officers, employees, agents, representatives and advisors (the “Purchaser Indemnitees”) harmless Purchaser from and shall reimburse the applicable Purchaser Indemnitee for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) Losses suffered or diminution of value (collectively, "Damages") arising from or in connection withincurred by any Purchaser Indemnitee after the Agreement Date which result from:
(ai) any inaccuracy in any Any material breach of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such a representation or warranty (for purposes by Seller, or non-fulfillment of this clause (a)any covenant or obligation of Seller, each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under contained in this Agreement;
(cii) Any servicing act or omission of any operations prior servicer relating to any Mortgage Loan and any act or business conducted, commitment made, service rendered or condition existing or omission of any action taken or omitted by or on behalf party related to the origination of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinMortgage Loan;
(diii) any claim by any person for brokerage Any act, error or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with omission of Seller (or any person acting on its behalf) in connection with servicing any of the transactions contemplated hereinMortgage Loans, including improper action or failure to act when required to do so;
(iv) Any exercise of any rights of setoff or other netting arrangements by any Owner against Seller that results in a decrease in Servicing Agreements termination payments due to Seller with respect to the Mortgage Loans from such Owner or in a shortfall of funds to pay the Future Excess Servicing Spread; and
(ev) Seller's failure to comply with Litigation, proceedings, governmental investigations, orders, injunctions or decrees resulting from any of the "Bulk Sales Laws" under the Uniform Commercial Codeitems described in Section 11.01(a)(i)-(iv) above; provided, however, that (ithe applicable Purchaser Indemnitee has taken all commercially reasonable and appropriate actions to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses as reasonably requested by Seller, which such failure of mitigation shall not relieve Seller of its indemnification obligations in this Section 11.01(a) Seller shall have no obligation to indemnify Purchaser for Damages until but may affect the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damagesobligation; and further provided, (ii) Seller' aggregate liability for Damages shall in no event exceed that any Losses incurred by the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.Purchaser
Appears in 2 contracts
Samples: Future Spread Agreement (Newcastle Investment Corp), Future Spread Agreement (Newcastle Investment Corp)
Indemnification by Seller. Subject to the provisions of Section 8.4, Seller shall indemnify indemnify, save harmless and hold harmless defend each of Purchaser, its stockholders, Subsidiaries, Affiliates, officers, directors, employees, agents, representatives, successors and assigns (each, a "Purchaser Indemnified Party"), from and shall reimburse Purchaser for against any lossand all losses, liabilityLiabilities, claimfines, damagejudgments, expense (includingsums required to be repaid, without limitationclaims, damages, settlement payments, actions or causes of action, Encumbrances, costs of investigation and defense and expenses (including reasonable attorney's attorneys' fees) (collectively "Losses") incurred by any of them by reason of, arising out of or diminution in connection with: (a) any breach of value any representation or warranty by Seller contained in this Agreement (, any Transaction Document or any certificate delivered to Purchaser in connection with the transactions contemplated by this Agreement (provided that, solely for purposes of the calculation of Losses arising hereunder and the determination of whether a breach has occurred, each such representation and warranty shall be read without any qualification of materiality, Material Adverse Effect or similar phrase in such representation or warranty); (b) any breach by Seller of any of their respective covenants, obligations or agreements contained in this Agreement or any Transaction Document; (c) any claims of any broker or finder engaged by Seller or any of its Affiliates relating to the transactions contemplated by this Agreement; (d) any Excluded Liability; and (e) any claim by a third party which, if true, would (i) indicate that a breach of a representation, warranty or other agreement of Seller hereunder had occurred or (ii) constitute an Excluded Liability (collectively, "DamagesPurchaser's Indemnifiable Losses") arising from or in connection with:
(a) any inaccuracy in any of ). Anything contained herein to the representations and warranties of contrary notwithstanding, Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall not be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except liable for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) amounts in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event that exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DatePrice.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hostopia.com Inc.), Asset Purchase Agreement (Hostopia.com Inc.)
Indemnification by Seller. Seller shall indemnify From and after the Closing, and regardless of any investigation made at any time by or on behalf of Buyer or any information Buyer may have, Seller, on behalf of itself, its Subsidiaries and its successors and assigns, hereby covenants and agrees to indemnify, defend and hold Buyer and its Affiliates, stockholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) harmless Purchaser from and shall against, and reimburse Purchaser the Buyer Indemnified Parties for all costs of, any loss, liabilitydemand, claim, damage, Liability, loss, cost or expense (includingincluding interest, without limitationpenalties, costs of preparation and investigation and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors and other costs and expenses incident to proceedings or investigations, or the defense and reasonable attorney's feesor settlement of any claim) or diminution of value (collectively, "“Buyer’s Damages"”) directly or indirectly arising out of, resulting from or in connection withrelating to:
(a) any inaccuracy in breach of any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of Seller made in Section 7 of this clause Agreement (a), each schedule and exhibit to this Agreement shall be deemed a representation and warrantyas modified by the Disclosure Schedule);
(b) any breach or failure of Seller to duly perform or observe any term, provision, covenant or agreement to be performed or observed by Seller or any of its Subsidiaries or Affiliates pursuant to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinPre-Closing Taxes;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; andExcluded Liabilities;
(e) any Indebtedness of Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code;
(f) any Seller’s Transaction Expenses; provided, however, that or
(ig) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after that the Closing DateBusiness Intellectual Property or the Business Products infringe any other Person’s Intellectual Property.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Veru Inc.), Asset Purchase Agreement (Blue Water Vaccines Inc.)
Indemnification by Seller. Seller shall will indemnify and hold harmless Purchaser and shall reimburse Purchaser Buyer for any loss, liability, claim, damage, damage or expense (including, without limitation, including costs of investigation and defense and reasonable attorney's feesattorneys’ fees and expenses) or diminution of value value, whether or not involving a Third-Party Claim (collectively, "“Damages") ”), arising from or in connection withfrom:
(a) any inaccuracy in Breach of any of the representations and warranties of representation or warranty made by Seller in (i) this Agreement Agreement, or in any (ii) the bringdown certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty Section 2.7(a) (for purposes of this clause (a)purpose, including the Schedules attached to each schedule such certificate will be deemed to have stated that Seller’s representations and exhibit to warranties in this Agreement shall fulfill the requirements of Section 6.1 as of the Closing Date as if made on the Closing Date unless the certificate expressly states that the matters disclosed in a supplement have caused a condition specified in Section 6.1 not to be deemed a representation and warrantysatisfied);
(b) any failure by Breach of any covenant or obligation of Seller to perform or comply with any agreement made by it under in this Agreement;
(c) any operations Liability arising out of the ownership or business conductedoperation of the Assets prior to the Closing Date, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinother than the Assumed Liabilities;
(d) any claim by any person for brokerage or finder's ’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made made, by any such person Person with Seller (or any person Person acting on its behalf) in connection with any of the transactions contemplated herein; andContemplated Transactions;
(e) Seller's failure any product or component thereof manufactured by or shipped, or any services provided by, Seller in respect of the Business prior to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date;
(f) any Liabilities of Seller which are not Assumed Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Birks Group Inc.)
Indemnification by Seller. As of the Effective Date and subject to the other provisions of this Section 6, Seller shall indemnify indemnify, defend and hold harmless Purchaser Buyer, its shareholders, directors, officers, agents and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value employees (collectively, the "DamagesBuyer Indemnified Parties") harmless from and against and will pay to the Buyer Indemnified Parties the amount of any Losses, arising directly or indirectly, from or in connection with:
(ai) any inaccuracy in breach of any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure made by Seller to perform or comply with any agreement made by it under in this Agreement;
(cii) any operations breach by Seller of any covenant or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf obligation of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;in this Agreement; or
(diii) any claim by any person for brokerage gross negligence or finder's fees willful misconduct of Seller or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's wrongful failure to comply with render the "Bulk Sales Laws" under services or produce the Uniform Commercial Code; providedproducts contemplated by this Agreement. Notwithstanding the above, however, that (i) Seller shall have no obligation liability and shall not indemnify Buyer for any Losses to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andextent based on (A) the gross negligence or willful misconduct of a Buyer Indemnified Party or (B) any delay or refusal on the part of Buyer in providing any necessary pre-approvals or approvals under this Agreement on a timely basis. In each instance where pre-approval or approval is required under this Agreement, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation request for pre-approval or approval in advance of the time when Losses would be incurred if pre-approval or approval were not obtained. Seller shall not be obligated to indemnify Purchaser for take any claims made action or pay any expense with respect to a matter requiring pre-approval or approval until such pre-approval or approval has been provided by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateBuyer.
Appears in 2 contracts
Samples: Transition Agreement (Bei Medical Systems Co Inc /De/), Asset Purchase Agreement (Bei Medical Systems Co Inc /De/)
Indemnification by Seller. (a) Following the Closing, Seller shall defend, indemnify and hold harmless Purchaser and shall reimburse its Affiliates and, if applicable, their respective directors, officers, agents, employees, representatives, successors and assignees (a “Purchaser for Indemnified Party”), from and against any lossand all damages, liabilityliabilities obligations, claimlosses, damageTaxes, expense (includingfines, without limitationpenalties, fees, costs (including costs of investigation and investigation, defense and enforcement of this Agreement), expenses or amounts paid in settlement (in each case, including reasonable attorney's fees’s and experts’ fees and expenses) or diminution of value (collectively, "Damages"the “Losses”) whether or not involving a Third-Party Claim incurred by such Purchaser Indemnified Party to the extent arising from or in connection withrelating to:
(ai) any breach of or inaccuracy in any of the representations and warranties representation or warranty of Seller set forth in this Agreement (ignoring for this purpose any materiality qualifiers set forth in such representation or warranty for determining (A) whether there has been a breach of or inaccuracy in any certificate delivered by Seller pursuant to representations or warranty set forth in this Agreement, ; and (B) the amount of Losses with respect to any such breach of or any actions, omissions or state of facts inconsistent with inaccuracy in any such representation or warranty (for purposes of set forth in this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warrantyAgreement);
(bii) any failure by claim for fraud or intentional misrepresentation;
(iii) any nonfulfillment or breach of any covenant or agreement on the part of Seller to perform or comply with any agreement made by it under set forth in this Agreement;
(civ) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf Taxes (A) that are the responsibility of Seller, except for any claims for which Purchaser is (B) attributable to a Pre-Closing Tax Period, or (C) required to indemnify Seller be withheld by Purchaser with respect to any payment made under this Agreement that were not withheld pursuant to Section 7.2 herein3.8;
(dv) any claim by any person for brokerage Excluded Liability or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated hereinExcluded Asset; and
(evi) Seller's failure to comply with any of the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.items listed on Exhibit E.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Finch Therapeutics Group, Inc.), Asset Purchase Agreement (Finch Therapeutics Group, Inc.)
Indemnification by Seller. If the Closing occurs, Seller shall indemnify agrees, for a period of twelve (12) months after the Closing Date (the “Survival Period”), to release, indemnify, defend and hold harmless Purchaser from and shall reimburse Purchaser for against any lossand all suits, liabilityjudgments, claimdamages, damageclaims, expense liabilities, Losses, costs and expenses (including, without limitation, court costs of investigation and defense and reasonable attorney's attorneys’ fees) or diminution of value (collectively, "Damages") arising from or in connection with:):
(a) that are attributable to any inaccuracy in any Liabilities relating to Environmental Laws, with respect to the use, ownership or operation of the representations and warranties Assets during periods of Seller in this Agreement time prior to the Effective Time, regardless of whether Purchaser was wholly or in any certificate delivered by Seller pursuant to this Agreement, partially negligent or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)otherwise at fault;
(b) that arise out of any failure breach by Seller to perform of any representation, warranty, or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; covenant hereunder. provided, however, that such indemnity, defense and hold harmless obligations shall not apply to (i) Seller shall have no obligation any amount that was taken into account as an adjustment to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for Preliminary Purchase Price pursuant to the full amount of such Damagesprovisions hereof, (ii) Seller' aggregate any liability for Damages shall in no event exceed of Purchaser to Seller under the Purchase Considerationprovisions of this Agreement, and (iii) Seller any amount in excess of twenty percent (20%) of the Preliminary Purchase Price; provided further that the foregoing limitation set forth in subsection (iii) in the immediately preceding clause of this sentence shall have no not apply in respect of any breach of representation or warranty set forth in Section 4.1, Section 4.2 or Section 4.23 or any fraud or willful misconduct; and provided further that Seller’s indemnity obligation with respect to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four tax matter and the special warranty of title contained in the conveyances to be provided at Closing shall extend until ninety (2490) months days after the Closing Dateapplicable statute of limitations period for such matter .
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Forest Oil Corp)
Indemnification by Seller. Until December 31, 2010, Seller shall indemnify and hold Buyer harmless Purchaser from and shall reimburse Purchaser for against any liability, loss, liabilitydamage, claim, damage, cost or expense (including, without limitation, costs expenses of investigation and defense and reasonable attorney's fees) fees and disbursements of counsel), Liens, or diminution other obligations of value any nature whatsoever (collectively, "Damages") “Losses”), incurred by any of them and arising from out of or in connection withbased upon:
(a) any inaccuracy in any breach by Seller of the representations and warranties of Seller its representations, warranties, covenants or agreements set forth in this Agreement Agreement, the Master Agreement, any Ancillary Agreement, or in any certificate other document or instrument delivered by Seller pursuant to this Agreement, hereto or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)thereto;
(b) any failure by Seller claim, action, suit, proceeding or investigation of any kind, at law or in equity, arising primarily from acts, omissions, events or other conditions that occurred or existed with respect to perform the Assets or comply with the Business at any agreement made by it under this Agreement;time prior to the Closing, including, without limitation, all claims of ConocoPhillips against Seller; and
(c) any operations obligations, debts, Taxes, operating expenses, rent, utilities and other liabilities of Seller of any kind, character or business conducteddescription, commitment madewhether accrued, service rendered absolute, contingent or otherwise, that are not expressly assumed by Buyer pursuant to Section 1.3 above, including for purposes of clarity and without limitation, any Losses incurred as a result of any Environmental Matters (as provided for in Section .6.3 hereof) or condition existing asserted against Buyer or the Assets. Seller shall have no right to seek contribution from Buyer with respect to all or any action taken part of their indemnification obligations hereunder, and such obligations shall not be affected by any investigation conducted or omitted knowledge acquired (or capable of being acquired) by or on behalf of SellerBuyer at any time, except for any claims for which Purchaser is required whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage the accuracy or finder's fees inaccuracy of or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection compliance with any representation, warranty, covenant or agreement of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) . Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser ’s obligations under this Section 7.1 after twenty four (24) months after the Closing Dateshall expire and be of no further effect at 11:59 p.m., Indianapolis time, on December 31, 2010.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Global Energy, Inc.), Master Agreement (Global Energy, Inc.)
Indemnification by Seller. Seller shall hereby covenants and agree that, to the fullest extent permitted by Legal Requirement, they will defend, indemnify and hold harmless Purchaser Buyer, and shall reimburse Purchaser for any lossits Related Persons and Representatives, liabilityand their respective officers, claimdirectors, damagemembers, expense (includingmanagers, without limitationemployees, costs agents, and Representatives, and all successors and assigns of investigation and defense and reasonable attorney's fees) or diminution of value the foregoing (collectively, "Damages") the “Buyer Indemnified Persons”), for, from and against any Adverse Consequences arising from or in connection with:
: (ai) any inaccuracy in Breach of any of the representations and warranties of representation, warranty, covenant, obligation or agreement made by Seller in this Agreement the Transaction Documents, the Schedules and Exhibits hereto, the certificates delivered hereunder, any transfer instrument, or in any certificate other certificate, document, writing or instrument delivered by Seller pursuant to this Agreementor otherwise in connection with the Transaction Documents; (ii) any Liability of GFD based on facts, events or circumstances occurring before the Closing Date, or arising out of or in connection with the ownership and operation of GFD, GFD’s assets, and the GFD business prior to the Closing Date, or facts and circumstances relating specifically to GFD, GFD’s assets, and the GFD business existing at or prior to the Closing, respectively, whether or not such Liabilities or claims were known or unknown, absolute, accrued or contingent, on such date; (iii) any actions, omissions Liability of GFD to Seller or state any Related Person of facts inconsistent Seller (except in connection with any such representation or warranty Permitted Encumbrances prior to the date on which Buyer has fully performed under the Transaction Documents); (for purposes of this clause (aiv), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
the EXO Loan Documents; or (b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(dv) any claim by any person Person for any brokerage or finder's fees or commissions ’s fee, commission or similar payments payment based upon any agreement or understanding alleged to have been made by such Person with any such person with Seller (or any person acting on its behalf) in connection with this Agreement or any of the transactions contemplated herein; andContemplated Transactions.
7.3.3.1 In addition to its indemnification obligations under Section 7.3.3, Seller hereby covenant and agree that, to the fullest extent permitted by Legal Requirement, they will defend, indemnify and hold harmless the Buyer Indemnified Persons for, from and against any Adverse Consequences (eincluding costs of cleanup, containment or other Remedial Action) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that arising out of acts or neglect occurring or conditions existing at or before Closing from or in connection with: (i) Seller shall have no obligation any Environmental, Health and Safety Liabilities arising out of or relating to indemnify Purchaser for Damages until (a) the aggregate Damages exceed $20,000 andconduct of any activity by Seller, GFD, or their Related Persons, or any employee, contractor, agent or Representative thereof, relating to GFD’s assets or Business, (b) the ownership or operation by any Person at any time on or prior to the Closing Date of any of GFD’s assets or Business, or (c), any Hazardous Materials or other contaminants that were present on GFD’s assets at any time on or prior to the Closing Date; or (ii), any bodily injury (including illness, disability or death, regardless of when such bodily injury occurred, was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person or any of GFD’s assets, in any way arising from or allegedly arising from (a) any Hazardous Activity conducted by Seller, GFD, their Related Persons or any employee, contractor, agent or Representative thereof, with respect to GFD’s assets or Business, or (b), from any Hazardous Material that was present or suspected to be present on or before the Closing Date on or at the Properties (or present or suspected to be present on any other property, if such eventHazardous Material emanated or allegedly emanated from any Property and was present or suspected to be present on any Property, for on or prior to the full amount Closing Date), or Released or allegedly Released by Seller, GFD, their Related Persons, or any Person, on or at any of such Damagesthe Properties or GFD Assets at any time on or prior to the Closing Date. Buyer, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationeither directly or through GFD, will be entitled to control any Remedial Action, any Proceeding relating to a claim that any Environmental Law has been violated and (iii) Seller shall have no obligation any other Proceeding with respect to indemnify Purchaser for any claims made by Purchaser which indemnity may be sought under this Section 7.1 after twenty four (24) months after the Closing Date7.3.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Attis Industries Inc.)
Indemnification by Seller. Except as otherwise limited by this Article VI or by Section 3.3 (Survival of Representations and Warranties and Covenants), Seller shall indemnify agrees to indemnify, defend and hold harmless Purchaser and shall reimburse Purchaser Holdings and each of its respective officers, directors, employees, agents, shareholders and controlling persons, and their respective successors and assigns, separate consideration for which is hereby acknowledged, of, from and against and in respect of any lossand all liabilities, liabilityactions, claimlawsuits, damageconduct, expense (includinglosses, without limitationdamages, demands, assessments, claims, costs and expenses (including interest, awards, judgments, penalties, settlements, fines, diminutions in value, costs and expenses incurred in connection with investigating and defending any claims or causes of investigation action including reasonable attorneys' fees and defense expenses and all reasonable attorney's feesfees and expenses of consultants and other professionals) ("DAMAGES") actually suffered, incurred or diminution of value realized by such party (collectively, "DamagesPURCHASER LOSSES") arising out of or resulting from or in connection withrelating to any of the following:
(a) any inaccuracy in misrepresentation, breach of warranty or breach of any of the representations and warranties of covenant or agreement made or undertaken by Seller in this Agreement or any misrepresentation in or omission from any certificate other agreement, certificate, exhibit or writing delivered by Seller to Purchaser pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of including the Schedules; provided that this clause (a)shall apply with respect to any misrepresentation, each schedule and exhibit breach of warranty or omission if, but only if, the representation, warranty or omission is set forth in a provision that survives the Closing pursuant to this Agreement shall be deemed a representation and warranty)Section 3.3;
(b) any failure by Seller Damages or Purchaser Losses (other than the Assumed Liabilities) relating to perform Seller, Holdings, the Assets or comply with the Business, whether known or unknown, now existing or hereafter arising, contingent or liquidated, (including without limitation, any agreement made by it under this Agreement;Tax liabilities) accruing or arising prior to the Closing Date; and
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted services provided by or on behalf of Seller, except for Seller or Holdings on or prior to the Closing Date or with respect to any claims for which Purchaser is required to indemnify Seller made pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged warranties to have been made by any such person with Seller (or any person acting on its behalf) third persons in connection with services provided by or on behalf of Seller or Holdings on or prior to the Closing Date. Notwithstanding the foregoing, Seller shall not be liable under clause (a) of this Section 6.2 based upon a misrepresentation or breach of warranty or omission unless and until the aggregate amount of any Purchaser Losses exceeds $2.0 million at which time all Purchaser Losses in excess of the transactions contemplated herein; and
(e) such amount shall be subject to indemnification by Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller Seller's liability under Sections 6.2(b) and (c) shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andnot be so limited, in such event, for the full amount of such Damages, and (ii) liability under Section 6.2(a) shall not be so limited if such Purchaser Losses arise from Seller' aggregate liability for Damages shall 's breach of any of the provisions set forth in no event exceed the Purchase ConsiderationSections 3.1(b), and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under 3.1(f), or 9.1 of this Section 7.1 after twenty four (24) months after the Closing DateAgreement.
Appears in 2 contracts
Samples: Purchase Agreement (Pride Petroleum Services Inc), Purchase Agreement (Pride Petroleum Services Inc)
Indemnification by Seller. Subject to the terms and conditions of Section 11.4 and Section 11.5, Seller shall indemnify agrees to indemnify, defend and hold harmless Purchaser Buyer and shall reimburse Purchaser its successors and assigns (each a “Buyer Indemnitee”) from or against, for and in respect of, any lossand all damages, liabilitylosses, claimobligations, damageLiabilities, expense demands, judgments, injuries, penalties, claims, actions or causes of action, costs, and expenses (including, without limitation, costs of investigation reasonable attorneys’, experts’ and defense and reasonable attorney's consultants’ fees) or diminution of value (collectively, "Damages"“Losses”) suffered, sustained, incurred or required to be paid by any Buyer Indemnitee arising from or out of, based upon, in connection withwith or as a result of:
(a) any inaccuracy in or breach of any of the representations and warranties of representation or warranty made by Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) the non-fulfillment, non-performance or other breach of any failure covenant or agreement to be performed by Seller pursuant to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinthe Retained Liabilities;
(d) any claim by Taxes relating to any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged period prior to have been made by any such person with Seller (or any person acting on its behalf) in connection with any Closing, arising out of the transactions contemplated hereinPurchased Assets or Assumed Liabilities, other than any Transfer Taxes that Buyer is responsible for under Section 12.1; andor
(e) Seller's failure a bona fide Environmental Claim brought against Buyer by third parties who are not Affiliates of Buyer, and who are not otherwise acting on behalf of Buyer or as a result of solicitation by or on behalf of Buyer, that (i) is a Material Environmental Liability and (ii) pertains to comply the Leased Real Property and (A) pre-Closing Environmental Releases or (B) pre-Closing non-compliance with the "Bulk Sales Environmental Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no Seller’s indemnity obligation pursuant to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (2411.2(e) months after shall expire on the date that is five years from the Closing Date, except that such time limitation shall not apply to Claims which have been asserted by Buyer and which are the subject of a written notice from Buyer to Seller prior to such expiration date.
Appears in 2 contracts
Samples: Purchase Agreement (Athenex, Inc.), Purchase Agreement (ImmunityBio, Inc.)
Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser Purchaser, for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinthis Agreement;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four eighteen (24) months after the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Beyond Commerce), Asset Purchase Agreement (Omnireliant Holdings, Inc.)
Indemnification by Seller. (a) Subject to the provisions of this ARTICLE VI, Seller shall agrees to defend, indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for its Affiliates, and their respective directors, officers, agents, employees, successors and assigns, from and against any lossand all claims, liabilityactions, claimcauses of action, damagejudgments, expense (includingawards, without limitationLiabilities, losses, costs of investigation and defense and (including reasonable attorney's ’s fees) or diminution of value damages (collectively, "Damages"a “Loss” or, the “Losses”) claimed or arising from or in connection with:
(ai) any inaccuracy in Retained Liability, (ii) any breach by Seller of any of the representations and warranties of Seller its covenants or agreements contained in this Agreement or (iii) any breach of any representation or warranty of Seller contained in this Agreement, except to the extent resulting from (A) any certificate delivered Assumed Liability, (B) any breach by Seller pursuant to Buyer of any of its covenants or agreements in this Agreement, or (C) any actions, omissions or state breach of facts inconsistent with any such representation or warranty (for purposes of Buyer contained in this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);Agreement.
(b) Buyer acknowledges and agrees that Seller shall not have any failure Liability under any provision of this Agreement for any Loss to the extent that such Loss relates to action taken by Buyer or any other Person relating to the Purchased Assets (other than action taken by Seller to perform or comply with any agreement made by it under in breach of this Agreement;
(c) any operations on or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date. Buyer shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to the Loss.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vera Therapeutics, Inc.), Asset Purchase Agreement (Vera Therapeutics, Inc.)
Indemnification by Seller. Without limiting or otherwise affecting the indemnity provisions of any Ancillary Agreement, from and after the Closing Date, Seller shall indemnify will indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless Purchaser the Acquiror Indemnitees from and shall against, and will reimburse Purchaser for such Acquiror Indemnitee with respect to, any lossand all Losses that result from, liabilityrelate to or arise, claimwhether prior to or following the Closing, damage, expense out of any of the following items (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:duplication):
(a) any Excluded Liability, including the failure of Seller or any other member of the Seller Group or any other Person to pay, perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full such Liabilities;
(b) any breach by Seller or any other member of the Seller Group of any covenant to be performed by such Persons pursuant to this Agreement or the Ancillary Agreements at or after the Closing;
(c) any breach or inaccuracy in of any of the representations and warranties of Seller contained in Article II of this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;at the Closing; and
(d) any claim made by or in respect of any person for brokerage employed or finder's fees formerly employed by Seller or commissions or similar payments based upon any agreement or understanding alleged to have been made by any member of the Seller Group, other than a Continuing Employee, that the employment of such person with Seller (was required to transfer to the Acquiror Group by the operation of this Agreement or any person acting on its behalf) in connection with any by operation of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial CodeLaw; provided, however, that (i) nothing herein will be deemed to require Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser any Acquiror Indemnitee for any claims made by Purchaser under this Section 7.1 after twenty four (24) months or in respect of such person, relating to his or her continued employment with the Acquiror Group after the Closing Date.
Appears in 2 contracts
Samples: Transaction Agreement (Kellogg Co), Transaction Agreement (Kellogg Co)
Indemnification by Seller. (a) Seller shall hereby agrees to indemnify and hold harmless Purchaser and shall reimburse Purchaser for the Companies from and against (i) any loss, liability, claim, damageobligation, expense damage or deficiency (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, any "DamagesDamage") of or to Purchaser or any of the Companies (other than any relating to Taxes, for which indemnification provisions are set forth in Section 5.04(e)) arising out of or resulting from any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement on the part of Seller contained in this Agreement or in any statement or certificate furnished or to be furnished to Purchaser pursuant hereto or in connection with:with the transactions contemplated hereby, and (ii) any actions, judgments, costs and expenses (including reasonable attorneys' fees and all other expenses incurred in investigating, preparing or defending any litigation or proceeding, commenced or threatened) (any "Costs") incident to any of the foregoing or the enforcement of this Section 7.01.
(ab) any inaccuracy in any No action or claim for Damages resulting from breaches of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement Section 5.04(e) shall be deemed a representation and warranty);
brought or made after the third anniversary of the Closing Date, except that such time limitation shall not apply to (bi) any failure by breach of the representations contained in Sections 3.03 or 3.04 or (ii) any claims which exist prior to the third anniversary of the Closing Date, and which have been the subject of a written notice from Purchaser to Seller prior to perform or comply with any agreement made by it under this Agreement;such date, which notice specified in reasonable detail the nature of the claim.
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf Seller shall be liable to Purchaser only to the extent the cumulative total of Seller, except Damages and Costs under this Section 7.01 and Section 5.04(e) exceeds $200,000 (at which time rights to indemnification may be asserted for such $200,000 amount and amounts in excess thereof) and in no event shall Seller be liable under this Section 7.01 for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) amount in connection with any excess of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code$5,000,000; provided, however, that no limitation of liability provided in this paragraph (ic) shall apply to any Damage or Cost arising out of or resulting from common law fraud in connection with the transactions contemplated by this Agreement.
(d) Any indemnification payment by Seller under this Agreement shall have no obligation to indemnify Purchaser for Damages until be reduced by the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damagesany Purchaser's Tax Effect. For purposes hereof, (ii) Seller' aggregate liability "Purchaser's Tax Effect" shall mean an amount equal to the amount of the federal, state, local or foreign tax savings attributable to Purchaser's payment of any Damage or Cost for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser which it receives an indemnification payment under this Section 7.1 7.01 or under Section 5.04(e) (after twenty four (24) months after taking into account the Closing Datetax effect, if any, of receipt of any indemnification payment). To the extent the parties cannot agree whether any tax benefit exists or on the appropriate treatment of any tax benefit, such disagreement shall be resolved by either an accounting firm or a law firm with a nationally recognized tax practice selected jointly by Purchaser and Seller. If such parties cannot agree on a firm as specified in the prior sentence, the firm shall be selected jointly by the independent auditors of such parties.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Fuqua Enterprises Inc), Stock Purchase Agreement (Atlantic American Corp)
Indemnification by Seller. Without limiting any other rights that an Indemnified Party may have hereunder or under applicable law, and subject to Seller's right to cure as set forth in this Agreement, the Seller shall indemnify and hold harmless hereby agrees to pay on demand to the Purchaser and shall reimburse Purchaser for its parent, Subsidiaries and Affiliates and their directors, officers, employees and authorized agents Indemnified Amounts which may be imposed on, incurred by or asserted against an Indemnified Party as a result of any loss, liability, claim, damageaction, expense (includingdemand, without limitationproceeding or suit, costs whether or not groundless, that in any way arises out of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection withresults from:
(a) Use by the Seller of proceeds of any inaccuracy in any of the representations and warranties of Seller in this Agreement Sale or in respect of any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)Sold Program Contract;
(b) Reliance by the Purchaser on any failure by Seller to perform representation or comply with any agreement warranty made or deemed made by it the Seller (or any of its officers) under or in connection with this Sale Agreement;
(c) Any material breach by Seller of its representations and warranties, covenants or obligations, or material failure by the Seller to comply with any operations term, provision or business conductedcovenant, commitment made, service rendered or condition existing contained in this Sale Agreement or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinagreement executed in connection with this Sale Agreement;
(d) any claim by any person for brokerage The failure to vest and maintain vested in the Purchaser, or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any transfer to the Purchaser, legal and equitable title to and ownership of the transactions contemplated hereinProgram Contracts that are, or are purported to be, Sold Program Contracts, together with all proceeds in respect thereof, free and clear of any Adverse Claim (except as permitted hereunder) whether existing at the time of the proposed sale of such Program Contract or at any time thereafter, and without limitation to the remedies set forth in Section 4.4; andor
(e) Seller's failure Any act or omission by Seller or its agents, officers or employees or controlled Affiliates or by any Dealer arising out of or relating to the purchase by the Seller of any Contract, the sale by the Dealer of any Contract or the sale by the Dealer of a Financed Vehicle or related product or service to an Obligor, which results in a material loss by or claim against the Purchaser, including any claim by an Obligor or Governmental Authority that the form, terms or provisions of the Contract fail to comply with the "Bulk Sales Laws" under requirements of applicable federal and state laws. If a claim for indemnification is tendered by an Indemnified Party to the Uniform Commercial Code; providedSeller, howeverthe Seller may, at its option, repurchase the Program Contracts involved in such claim in accordance with the terms of Section 4.4 of this Agreement and the Repurchase Price for such Program Contracts actually paid by the Seller to the Purchaser shall be taken into account in determining the amount of the loss that (i) the Indemnified Party has incurred as a result of such claim. The Seller acknowledges that the Purchaser may assign its rights of indemnity granted hereunder to an assignee and upon such assignment, such assignee shall have no obligation to indemnify all rights of the Purchaser for Damages until hereunder and may in turn assign such rights. The Seller agrees that, upon such assignment, such assignee may enforce directly, without joinder of the aggregate Damages exceed $20,000 andPurchaser, the indemnities set forth in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateSection.
Appears in 2 contracts
Samples: Contract Sale Agreement (National Auto Finance Co Inc), Contract Sale Agreement (National Auto Finance Co Inc)
Indemnification by Seller. Subject to the other terms and conditions of this ARTICLE VIII, from and after Closing, Seller shall indemnify and hold harmless Purchaser defend each of Buyer and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation its Affiliates and defense and reasonable attorney's fees) or diminution of value their respective Representatives (collectively, "Damages"the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising from out of, with respect to or in connection withby reason of:
(a) any inaccuracy in or breach of any of the representations and or warranties of Seller contained in this Agreement Agreement, the Ancillary Documents or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement, the Ancillary Documents or any actions, omissions certificate or state instrument delivered by or on behalf of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit Seller pursuant to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing Excluded Asset or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;Excluded Liability; or
(d) any claim by any person for brokerage Third-Party Claim based upon, resulting from or finder's fees arising out of the business, operations, properties, assets or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with obligations of Seller (or any person acting of its Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure or prior to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.), Asset Purchase Agreement (Crown Electrokinetics Corp.)
Indemnification by Seller. Seller shall agrees to indemnify and hold Buyer, its affiliates, and their respective directors, officers, employees, consultants, shareholders, members, partners, agents, and representatives, and all successors and assigns, harmless Purchaser from and shall reimburse Purchaser for against any lossand all actions, liabilitysuits, claimproceedings, damagedamages, expense liabilities, claims, losses, costs, and expenses (including, without limitation, costs of investigation including reasonable attorneys' and defense and reasonable attorney's experts' fees) or diminution of value (collectively, "DamagesLosses") paid or incurred by Buyer by reason of, or arising from out of, or in connection with:
: (a) the breach by Seller of any inaccuracy in any of the representations and warranties of Seller material representation or warranty contained in this Agreement APA or in any certificate delivered by Seller to Buyer pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes the provisions of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
APA; (b) any the failure by of Seller to perform or comply with any material covenant or agreement made required by it under this Agreement;
APA to be performed or complied with by Seller; (c) any operations or business conductedRetained Liability; and (d) any activities of the Business conducted by Seller prior to the Closing Date, commitment made, service rendered or condition existing or any action other Seller actions related to the Transferred Assets that were taken or omitted by Seller prior to the Closing Date, or on behalf of Seller, except for any claims for which Purchaser is required are taken or omitted by Seller after the Closing Date but are related to indemnify liabilities or obligations that continue to attach to Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date, unless Losses in connection therewith are due to a breach by Buyer of any material representation or warranty contained in this APA that survives at the time such Losses arose; provided that any such claim within this paragraph 10.1 resulting in any Losses is either approved as valid by Seller, or is otherwise judicially determined to be valid (and provided that Seller shall be responsible for all of Buyer's costs associated with such judicial determination in the case that it confirms the claim's validity).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Capital Art, Inc.), Asset Purchase Agreement (Capital Art, Inc.)
Indemnification by Seller. (a) Following the Closing and subject to the terms of this Agreement, Seller shall indemnify and indemnify, defend, hold harmless Purchaser and shall reimburse Purchaser for any lossBuyer and its Affiliates and their respective successors and permitted assigns, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value in their capacity as such (collectively, "Damages") arising the “Buyer Indemnified Parties”), for, from and against all Losses imposed on, incurred or suffered by or asserted against any Buyer Indemnified Party in connection withwith or arising out of:
(ai) any inaccuracy in or breach of any Non-Fundamental Seller Representation; it being understood that for purposes of this Section 8.2(a)(i) any qualifications relating to materiality (such as the representations terms “material” and warranties of Seller “Material Adverse Effect”) contained in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (other than the representation and warranty set forth in Section 3.6(b) (Absence of Certain Changes)) shall be disregarded for purposes of determining whether such representation or warranty was inaccurate or breached as well as for purposes of calculating the quantity of such Losses;
(ii) any inaccuracy in or breach of any Seller Fundamental Representation; it being understood that for purposes of this clause Section 8.2(a)(ii) any qualifications relating to materiality (a), each schedule such as the terms “material” and exhibit to this Agreement “Material Adverse Effect”) contained in such representation or warranty shall be deemed a disregarded for purposes of determining whether such representation and warranty)or warranty was inaccurate or breached as well as for purposes of calculating the quantity of such Losses;
(biii) any breach of or failure by of Seller or the Company to fully perform any covenant or comply with any agreement made by it under obligation of Seller or the Company contained in this Agreement;
(civ) any operations Indemnified Taxes;
(v) any claim, cause of action, right or business conductedremedy, commitment made, service rendered or condition existing or any action taken Action, asserted at any time by any actual or omitted by alleged member or on behalf securityholder of Seller, except for the Company or any claims for which Purchaser is required of their respective Affiliates (other than any claims, cause of action, right or remedy or Action asserted by Seller in accordance with the terms of this Agreement) relating to indemnify Seller pursuant Buyer’s obligations under this Agreement, including the obligation to Section 7.2 hereinpay any Contingent Payments or use Commercially Reasonable Efforts to develop, commercialize, market or -80- sell the Kv7 Products, or the allocation or entitlement to a portion of the consideration paid or to be paid in connection with the Transactions, including any assertion of contractual, employment or other rights and any assertion of rights to own or acquire any security;
(dvi) any claim by Excluded Asset or Excluded Liability;
(vii) any person for brokerage inaccuracies in the Funds Flow Memorandum; or
(viii) any Seller Transaction Expenses that are not paid in full at or finder's fees or commissions or similar payments based upon prior to the Closing.
(b) Seller shall not have any agreement or understanding alleged liability pursuant to have been made by this Article VIII in respect of any such person with Seller (or any person acting on its behalf) in connection with any Losses of the transactions contemplated herein; and
(etype described in Section 8.2(a)(i) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the extent that the aggregate Damages exceed $20,000 and, in such event, for the full amount of such DamagesLosses (excluding any Losses counted towards the Deductible described in clause (ii) below) exceeds [**] (the “Cap Amount”), (ii) Seller' unless and until the aggregate liability amount of such Losses (together with all losses of the type described in Section 8.2(a)(ii)) exceeds [**] (the “Deductible”), in which event Seller shall be liable for Damages shall all such Losses in no event exceed excess of the Purchase ConsiderationDeductible, and (iii) Seller shall have no obligation with respect to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four individual item or series of related items where the Loss relating thereto is less than [**] (24) months after the Closing Date“De Minimis Claim Threshold”).
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Biohaven Research Ltd.), Membership Interest Purchase Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Indemnification by Seller. Seller shall indemnify (a) From and hold harmless Purchaser after the Closing Date and shall reimburse Purchaser for any losssubject to the provisions of this Article XI, liabilityBuyer and its Affiliates and their respective its directors, claimofficers, damagemanagers, expense (includingemployees, without limitationequity holders, costs of investigation agents, attorneys, representatives, successors and defense and reasonable attorney's fees) or diminution of value permitted assigns, as applicable (collectively, "Damages"the “Buyer Indemnified Parties”) shall be entitled to be indemnified and held harmless by Seller from and against any and all Losses incurred by any Buyer Indemnified Party resulting or arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(bi) any failure by Seller to perform or comply with any covenant or agreement in this Agreement or any Closing Document, (ii) any inaccuracy in or breach of any representation or warranty made by Seller in this Agreement or any Closing Document, whether or not known by Buyer at Closing, (iii) with the exception of the Assumed Liabilities, any Third Party Claim based upon, resulting from or arising out of the conduct of the Business, the ownership or operation of the Purchased Assets, or the sale of products and services relating to the Business by the Seller Parties prior to the Closing Date, or (iv) any Excluded Asset or Excluded Liability, including any Environmental Liability or Employee Liability, regardless of whether or not the Seller Disclosure Schedule discloses any such Excluded Asset or Excluded Liability; provided that for purposes of this Section 11.2, the representations and warranties of Seller in this Agreement and the Closing Documents shall be deemed to have been made without any qualifications as to knowledge or materiality and, accordingly, all references herein and therein to “knowledge,” “Business Material Adverse Effect,” “material,” “in all material respects” and similar qualifications as to knowledge and materiality shall be deemed to be deleted therefrom (except (x) where any such provision requires disclosure of lists of items of a material nature or above a specified threshold, (y) with respect to any knowledge qualifier, where it relates to any “threatened” act or circumstance or to the compliance by any third party with any obligation owed to a Seller Party under any Contract or otherwise or (z) with respect to the knowledge qualifiers set forth in Section 5.12(g) relating to the Licensed IP only), provided, further, that to the extent that any materiality or knowledge qualified representation or warranty is deemed to be breached by Seller solely as the result of the application of the proviso immediately preceding this Agreementproviso, such breach will not constitute or give rise to a claim of Fraud, for purposes of this Article XI or otherwise.
(b) Notwithstanding anything in this Agreement to the contrary, Seller shall not be liable for any Loss or Losses resulting from any inaccuracy in or breach of any representation or warranty made by Seller in this Agreement other than the Seller Fundamental Representations pursuant to Section 11.2(a)(ii) (“Buyer Warranty Losses”):
(i) unless and until the aggregate amount of all Buyer Warranty Losses incurred by the Buyer Indemnified Parties exceeds an amount equal to one percent (1.0%) of the Base Purchase Price (the “Deductible”), and then only to the extent that such Buyer Warranty Losses exceed the Deductible; provided that the limitation in this Section 11.2(b)(i) shall not apply to any claims resulting from any inaccuracy in or breach of any representation or warranty made by Seller in Section 5.12(a) and the first sentence of Section 5.12(g);
(ii) with respect to any individual claim or series of claims having the same nature or origin where the Buyer Warranty Losses relating thereto are less than Twenty-Five Thousand Dollars ($25,000) and any such Buyer Warranty Losses shall not be counted or aggregated for purposes of determining whether the Buyer Indemnified Parties have incurred Losses in excess of the Deductible; provided that the limitation in this Section 11.2(b)(ii) shall not apply to any claims resulting from any inaccuracy in or breach of any representation or warranty made by Seller in in Section 5.12(a) and the first sentence of Section 5.12(g); and
(iii) to the extent that Buyer Warranty Losses, in the aggregate, exceed (A) an amount equal to ten percent (10.0%) of the Base Purchase Price with respect to any representations or warranties other than the representations and warranties set forth Section 5.12(a) and the first sentence of Section 5.12(g) (the “Cap”), or (B) an amount equal to the Purchase Price minus the aggregate value of the Inventory, as set forth in the Appraisal Report, with respect to any representations or warranties of Seller set forth in Section 5.12(a) and the first sentence of Section 5.12(g).
(c) Notwithstanding anything in this Agreement to the contrary, nothing contained in Section 11.2(b) shall be deemed to limit or restrict in any operations manner any rights or business conductedremedies which Buyer has, commitment madeor might have, service rendered at Law, in equity or condition existing or any action taken or omitted by or otherwise, based on behalf claims arising out of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;Fraud.
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Notwithstanding the foregoing limitations in Section 11.1 and this Section 11.2, Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to will indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, Buyer for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four relating to any Seller Parties’ failure to timely file any required reports and excise tax documents with the Alcohol and Tobacco Tax and Trade Bureau (24the “TTB”), the California Department of Alcoholic Beverage Control or Board of Equalization (the “BOE”) months after or to timely pay any federal excise taxes to the TTB and state taxes to the BOE with respect to operations of the Business prior to the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Constellation Brands, Inc.), Asset Purchase Agreement (Constellation Brands, Inc.)
Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for any lossits Affiliates and each of their respective shareholders, liabilitytrustees, claimdirectors, damageofficers, expense (including, without limitation, costs of investigation employees and defense and reasonable attorney's fees) or diminution of value agents (collectively, "Damages"the “Buyer Parties”) arising harmless against and from and in respect of any and all Losses which are incurred by virtue of or in connection with:
result from (a) any (i) the inaccuracy in or breach of any representation or warranty made by Seller or Company in this Agreement (as modified by the Disclosure Schedules attached hereto, but not an inaccuracy in or breach of any statement made in the representations and warranties Disclosure Schedules themselves) or (ii) the non-fulfillment by Seller or Company of Seller any covenant or agreement, in each case as contained in this Agreement or in any certificate of the Transaction Documents or in any document or instrument delivered by Seller at the Closing pursuant to this Agreementhereto or thereto, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
Company’s ownership of LDS, (c) the failure of Washington Mutual Bank, FA, to make any operations or business conductedpayment required under that certain Amended and Restated Sublease Agreement dated November 26, commitment made2002, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any as amended as of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Codedate hereof; provided, however, that (i) if and to the extent that Seller shall have no obligation becomes obligated to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andBuyer Parties pursuant to this subsection (c), in such eventBuyer shall take all actions reasonably requested by Seller to assign to Seller, for the full amount upon Seller’s satisfaction of such Damagesindemnification obligations, all of Buyer’s (or any of its Affiliates’) rights under such sublease to receive such corresponding payment(s) from Washington Mutual Bank, FA, such that Seller will thereafter be entitled to pursue any and all contribution, collection or other actions or remedies against Washington Mutual Bank, FA in connection with such corresponding payment(s), (iid) Seller' aggregate liability the failure of Company to terminate the Terminated Employees in accordance with Section 12.4 below, or (e) the successful enforcement by the Buyer Parties’ of their indemnification rights provided for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datehereunder.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Identix Inc), Stock Purchase Agreement (Alion Science & Technology Corp)
Indemnification by Seller. From and after the Closing, Seller shall defend, indemnify and hold harmless Purchaser Buyer, Parent and shall reimburse Purchaser for any losstheir respective Affiliates and each of their respective members, liabilitydirectors, claimofficers, damagemanagers, expense (includingemployees, without limitationinsurers and, costs of investigation in each case, their respective successors and defense and reasonable attorney's fees) or diminution of value assigns (collectively, "Damages"the “Buyer Indemnitees”) arising from and against any and all Damages (individually a “Buyer’s Indemnified Claim” and collectively “Buyer’s Indemnified Claims”) which are suffered or incurred by any of Buyer Indemnitees or to which any of Buyer Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and which arise from or in connection as a result of, or are connected with:
(a) any inaccuracy in or breach of any of representation or warranty made by Seller or the representations and warranties of Seller Company in this Agreement or in any certificate the certificates delivered by Seller pursuant to this Agreement, Section 10.2(b) hereto (without giving effect to (i) any materiality or any actions, omissions or state Material Adverse Effect qualifications limiting the scope of facts inconsistent with any such representation or warranty warranty, provided, however, that this Clause (for purposes i) shall not apply to any reference to Material Contract therein, or (ii) any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warrantyAgreement);
(b) any failure by Seller breach of any of (i) Seller’s covenants, obligations or agreements contained in this Agreement that survive the Closing or (ii) the Company’s covenants, obligations or agreements contained in this Agreement that survive the Closing and arising prior to perform or comply with any agreement made by it under this Agreementthe Closing;
(c) any operations Indebtedness of the Company described in clauses (i), (iv) or business conducted, commitment made, service rendered (v) in the definition of Indebtedness arising prior to the Closing and outstanding as of the Closing Date or condition existing or any action taken or omitted by or Transaction Expenses incurred prior to the Closing Date which were not specifically included and counted such that they reduced the Cash Purchase Price on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereina dollar-for-dollar basis;
(d) any claim by Taxes for which Seller is responsible pursuant to Section 7.8;
(e) any Excluded Properties;
(f) the injury or death of any person for brokerage to the extent arising out of or finder's fees relating to the ownership or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any operation of the transactions contemplated hereinProperties by the Company prior to Closing; and
(eg) Seller's failure any contamination or condition that is the result of the Company’s off site transport or disposal, or arrangement for transport or disposal, of any hazardous substance from the Properties that occurred prior to comply with Closing or are attributable to the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation Company’s operations prior to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateClosing.
Appears in 2 contracts
Samples: Membership Interest Purchase and Sale Agreement (RSP Permian, Inc.), Membership Interest Purchase and Sale Agreement (RSP Permian, Inc.)
Indemnification by Seller. Seller shall agrees to defend, indemnify and hold Buyer, and its officers, directors, employees, representatives, shareholders, divisions, subsidiaries, Affiliates and direct and ultimate parent entities and their respective officers, directors, shareholders and employees (the "AC Entities") harmless Purchaser ----------- from and shall reimburse Purchaser against any and all claims, liabilities, damages, losses, penalties, excise taxes, deficiencies and expenses (including reasonable attorneys' fees and expenses and costs of suit, including but not limited to travel expenses and discovery costs for such matters as transcripts, photocopying, subpoenas and telecopies) (individually, a "Loss" and ---- collectively, "Losses"), arising out of relating to or in connection with (i) ------ any lossand all inaccurate representations and warranties made by or on behalf of Seller in this Agreement, liabilityincluding in Section 4 hereof, claimor in any document delivered by Seller hereunder (disregarding any materiality, damageknowledge or Material Adverse Effect qualifications with respect to any such representation, expense warranty, covenant or agreement, except (i) in instances when knowledge relates to "threatened" matters or matters relating to the intent of any other party or (ii) where such default can be cured at a cost of less then $1,000); (ii) any failure by Seller to give any notices which are required to be given by it to governmental authorities which are required in connection with the transactions contemplated by this Agreement and/or to comply with any applicable provisions of the Bulk Transfer Laws under any applicable Uniform Commercial Code, other than with respect to Assumed Liabilities; (iii) any Excluded Liability; (iv) any Environmental Condition relevant to the Premises or any facilities or operations thereon, existing as of and/or prior to the Closing Date, even if not discovered until after the Closing Date; (v) any violation of an Environmental Requirements with respect to the Premises or any facilities or operations thereon, existing as of and/or prior to the Closing Date, even if not discovered until after the Closing Date; (vi) any Hazardous Substance (as defined by Environmental Requirements) or storage tank on or previously on the Premises including, without limitation, costs the effects of any contamination or injury to any Person, property or the environment created or suffered thereby and the cost of investigation (including consultants' and defense attorneys' fees and reasonable attorney's feestesting), removal, remediation, restoration and/or abatement thereof, or of any contamination therein involved; (vii) the disposition by the Companies or diminution any of value them of any Waste or Hazardous Waste; (collectively, "Damages") arising from or in connection with:
(aviii) any inaccuracy violation of ERISA, the Code and/or such other law(s) which are applicable to any Plan as the term is defined in Section 4.18(a) of this Agreement, any violation of the terms of any Plan(s) in the operation and administration of such Plan(s) which could result in a Loss to Buyer, and any violation of the fiduciary or prohibited transaction rules of ERISA and the Code by Seller, any Company, any ERISA Affiliate, any officer, director, shareholder or employee of Seller or any Company or any ERISA Affiliate who is deemed an ERISA fiduciary or a party in interest or disqualified person to any Plan, whether any such violations exist as of and/or prior to the Closing Date, even if not discovered until after the Closing Date; (ix) breaches of any covenant or other agreement on the part of the Companies or any of the representations and warranties of Seller them set forth in this Agreement or in any certificate document delivered by Seller pursuant to this Agreement, the Companies or any actions, omissions or state of facts inconsistent with any such representation or warranty them at Closing; (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(bx) any failure by Seller to perform claims of any brokers or comply with any agreement made by it finders claiming by, through or under this Agreement;
(c) any operations or business conductedSeller, commitment made, service rendered or condition existing the Companies or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required them with respect to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, hereby and (iiixi) Seller shall have no obligation any obligations of Buyer for sales, use or other transfer Taxes due with respect to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datetransfer of the Furniture and Fixtures; Spare Parts, Inventory and Supplies; and the Machinery and Tools to Buyer hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Anthony Crane Rental Holdings Lp), Asset Purchase Agreement (Anthony Crane Rental Lp)
Indemnification by Seller. Other than with respect to Taxes, which shall be governed solely by Section 19, without duplication of the obligations of Seller under Section 11, Seller shall indemnify Buyer against, and hold Buyer harmless Purchaser from, any and shall reimburse Purchaser all losses, claims, damages, liabilities and related reasonable expenses (including the reasonable fees, charges and disbursements of any counsel for any lossBuyer) incurred by Buyer or asserted against Buyer arising out of, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
, or as a result of (ai) any inaccuracy in any the execution or delivery of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, any other related document or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made instrument contemplated hereby or thereby, the performance by any such person with Seller (the parties hereto of their respective obligations hereunder or any person acting on its behalf) in connection with any thereunder or the consummation of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; providedhereby or thereby, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, and (ii) Seller' aggregate liability for Damages any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether or not Buyer is a party thereto and whether or not caused by or arising, in part, out of the comparative or contributory negligence of Buyer; provided that such indemnity shall in no event exceed not, as to Buyer, be available to the Purchase Considerationextent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of Buyer or (iiiy) result from a claim brought by Seller shall have no obligation or Guarantor against Buyer, unless such claim is determined adversely to indemnify Purchaser for any claims made Seller or Guarantor by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datea final and nonappealable judgment of a court of competent jurisdiction.
Appears in 2 contracts
Samples: Master Repurchase Agreement, Master Repurchase Agreement (Liberty Mutual Agency Corp)
Indemnification by Seller. (a) Subject to Section 11.02(b), Buyer, its Affiliates and their successors and permitted assigns, in accordance with Section 13.03, and the officers, directors, employees and agents of Buyer, its Affiliates and their successors and permitted assigns, in accordance with Section 13.03 (each a "Buyer Indemnified Party"), shall be indemnified and held harmless by Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any lossand all liabilities, liabilitylosses, claimdamages, damageclaims, expense costs and expenses, interest, awards, judgments and penalties (including, without limitation, costs reasonable attorneys' and consultants' fees and expenses) actually suffered or incurred by any Buyer Indemnified Party (including, without limitation, any Action brought or otherwise initiated by any of investigation and defense and reasonable attorney's feesthem) (hereinafter a "Loss"), to the extent arising out of or diminution of value (collectively, "Damages") arising from or in connection withresulting from:
(ai) the breach of (A) any inaccuracy representation or warranty made by Seller contained in this Agreement (other than in respect of Taxes and other amounts indemnified against under Article IX), it being understood that solely for purposes of this Section 11.02, such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to "materiality" (including the words "material" or "Material Adverse Effect" but excluding any dollar limitations or thresholds) set forth therein or (B) any covenant or agreement of Seller contained in Section 5.02; or
(ii) the breach of any covenant or agreement by Seller contained in this Agreement (other than any covenant in Article IX or this Article XI) requiring performance after the Closing Date; or
(iii) the Excluded Liabilities; or
(iv) any liabilities under employee benefit plans and arrangements that Seller or its Affiliates sponsor or maintain that do not cover Continued Employees, and with respect to which the Company Subsidiary or Buyer or its Affiliates becomes liable solely because, prior to the Closing, the Company Subsidiary had contingent liability therefor as a member of the same controlled group of corporations for purposes of Section 414(b), (c), (m) or (o) of the Code as Seller and its Affiliates; or
(v) any Action, matter or claim (including, but not limited to, medical professional liability) arising out of or relating to the conduct of the Business prior to the Closing Date (whether or not any Action, matter or claim is pending as of the Closing) to the extent the Losses from such Action, matter or claim are covered by any insurance policy issued by a third party for the benefit of Seller or an internal insurance arrangement (such as through SmithKline Xxxxxxx Insurance Limited), in each case in effect with respect to the Business as of immediately prior to the Closing Date (or that would be covered by such policy or arrangement if an Action, matter or claim had been brought immediately prior to the Closing Date) or to the extent the Losses from such Action, matter or claim would be covered by any such policy or arrangement if Seller had not retained any self-insured retention or quota share participation with respect to such policy or arrangement (including indemnifying, defending and holding harmless any Buyer Indemnified Party in the event that any of them is named as a defendant in a suit or claim to the extent the allegations against such party involve conduct of the Company or the Company Subsidiary that is indemnifiable pursuant to this clause (v) to the extent such Buyer Indemnified Party's Losses arise from such conduct). To the extent any obligation of Seller in this Section 11.02 may be unenforceable, Seller shall contribute the maximum amount that it is permitted to contribute under Applicable Law to the payment and satisfaction of all Losses incurred by the Buyer Indemnified Parties for which Seller has an indemnification obligation under this Section 11.02.
(b) No claim may be made against Seller for indemnification pursuant to Section 11.02(a)(i) unless the aggregate of all Losses of the Buyer Indemnified Parties with respect to Section 11.02(a)(i) shall exceed an amount equal to $25,000,000, and Seller and Seller Subsidiary shall then only be liable for Losses in excess of such $25,000,000 amount. No Buyer Indemnified Party shall be indemnified pursuant to Section 11.02(a)(i) with respect to any individual item of Loss if the aggregate of all payments made for Losses of the Buyer Indemnified Parties for which the Buyer Indemnified Parties have received indemnification pursuant to Section 11.02(a)(i) shall have exceeded $946,500,000 (less any amount by which the Cash Purchase Price is reduced pursuant to Section 2.04(c)). For the purposes of this Section 11.02(b), in computing such individual or aggregate amounts of claims, the adjustments provided in Section 11.05 shall be taken into account.
(c) Notwithstanding the foregoing, no claim may be made against Seller for indemnification pursuant to Section 11.02(a)(i)(A), with respect to (i) breaches of the representations and warranties contained in Sections 3.07 and 3.14, in either such case, unless the aggregate of Losses under such section shall exceed an amount equal to $15,000,000, (ii) breaches of the representations and warranties contained in Sections 3.02 and 3.15, in either such case, unless the aggregate of Losses under such section shall exceed an amount equal to $5,000,000 and (iii) breaches of the representations and warranties contained in Sections 3.09, 3.10, 3.11, 3.12, 3.13, 3.16, 3.20 and 3.21, in any such case, unless the aggregate of Losses under such section shall exceed an amount equal to $3,000,000; it being understood that, for purposes of Section 11.02(b), Seller shall be liable for all Losses under the foregoing representations and warranties to the extent the thresholds in this Agreement or Section 11.02(c) are satisfied (subject to the $25,000,000 amount set forth in Section 11.02(b)).
(d) Buyer acknowledges and agrees that, should the Closing occur, its sole and exclusive remedy with respect to any certificate delivered by Seller pursuant and all claims relating to this Agreement, the transactions contemplated hereby, the Company and the Company Subsidiary and their respective assets, liabilities and business (other than claims of, or any actionscauses of action arising from, omissions fraud, or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims arising from the OIG Liabilities for which Purchaser Buyer's sole and exclusive remedy is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage 11.06 or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) other than in connection with covenants requiring performance after the Closing Date or claims or causes of action arising under any of the transactions contemplated herein; and
(eother Transaction Documents) Seller's failure shall be pursuant to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, indemnification provisions set forth in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, Article IX and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date11.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Smithkline Beecham PLC)
Indemnification by Seller. (a) Seller shall indemnify Purchaser and hold Purchaser harmless Purchaser from any losses, damages, diminution of value of assets or properties, liabilities, demands, claims, actions or causes of action, regulatory, legislative or judicial proceedings or investigations, assessments, levies, fines, penalties, costs and shall reimburse Purchaser for any loss, liability, claim, damage, expense expenses whatsoever (including, without limitation, costs reasonable attorneys' and expert witness fees and litigation expenses, cost of investigation and defense defense, and reasonable attorney's feesexpenses incurred in connection with any product recall and testing expenses) incurred or diminution of value suffered by Purchaser, the Subsidiaries and their respective agents, representatives, employees, officers, directors, shareholders, controlling persons and affiliates (collectivelytogether with the additional matters described in paragraph (b) hereof, "Damages") arising from or in connection withany of the following:
(a1) any Any inaccuracy in any of representation or warranty by the representations and warranties of Seller contained in this Agreement or in any certificate reaffirmation thereof in any closing document delivered by Seller pursuant to the provisions of this Agreement, whether or any actionsnot involving a Third Party Claim, omissions or state of facts inconsistent with any such representation or warranty (provided that in determining whether an inaccuracy exists in Section 4.3(c), 4.4, 4.10, 4.13(a), 4.13(b), 4.17(e), and 4.18 for purposes of this clause Section 11.1(a)(1) only, any exception in such Sections or subsections, as the case may be, for the defined term "Material Adverse Effect" shall be disregarded, but any use of the undefined term "material" or "materiality" shall continue to apply.
(a), each schedule and exhibit 2) Any breach of or failure to perform any covenant or agreement by the Seller contained in this Agreement shall be deemed a representation and warranty);
(b) or in any failure closing document delivered by Seller pursuant to perform or comply with any agreement made by it under the provisions of this Agreement;
(c3) Taxes which are unpaid as of the Closing Date and which are imposed upon any of the Subsidiaries with respect to (i) any operations taxable period ending on or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims before the Closing Date for which Purchaser is required to indemnify a tax return shall be filed by Seller pursuant to Section 7.2 herein;
10.2 (d"Pre-Closing Periods"), and (ii) Taxes imposed on any claim of the Subsidiaries pursuant to and solely by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller reason of Treasury Regulations Section 1.1502-6 (or any person acting on its behalfcomparable provision under state, local, or foreign law or regulation imposing several liability upon members of a consolidated, combined, affiliated or unitary group) in connection with for any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial CodePre-Closing Period; provided, however, that clause (ii) shall apply only with respect to such Taxes for which Seller or its Affiliates are also liable;
(4) Taxes resulting from Taxes imposed on any of the Subsidiaries with respect to the portion of any Straddle Period ending on the Closing Date (except to the extent of the excess of the amount reflected on the Final Balance Sheet over any amounts refunded to Seller by Purchaser pursuant to Section 10.3);
(5) Without being limited by subparagraph (1) of this Section 11.1(a) and without regard to the fact that any one or more of the items referred to in this Section 11.1(a)(5) may be disclosed in any of the Schedules to this Agreement or in any documents included or referred to herein, any action or failure to act in violation of any applicable ERISA provision, in whole or in part, and any liabilities incurred, on or prior to the Closing Date with respect to any Benefit Plan which any of the Subsidiaries or Seller or any ERISA Affiliate has at any time maintained or administered or to which any of the Subsidiaries or Seller or any ERISA Affiliate has at any time contributed, other than any underfunding in any funded Benefit Plans that would be offset as provided in Section 9.13;
(6) Without being limited by subparagraph (1) of this Section 11.1(a), and without regard to the fact that any one or more of the items reflected in this Section 11.1(a)(6) may be disclosed in the Schedules to this Agreement or in any document included or referred to herein, any liability or obligation of the Subsidiaries under any Environmental Law resulting from or arising out of:
a. any generation, transportation, storage, treatment or Release of any Hazardous Substances giving rise to liability under any Environmental Law occurring on or prior to the Closing Date (including without limitation those that allegedly result in, or result in, any Release or treatment of Hazardous Substances after the Closing Date) at (x) any of the Properties or (y) any Offsite Facility which received Hazardous Substances from any of the Subsidiaries prior to the Closing Date, regardless of when liability is asserted;
b. any discharges to or from storm, ground or surface waters or wetlands, and any air emissions or pollution giving rise to liability under any Environmental Law, which result from or are caused by activities, events, conditions or occurrences at any of the Properties prior to the Closing Date;
c. the exposure of and resulting consequences to any Persons, including, without limitation, employees of any of the Subsidiaries, to any Hazardous Substances created, generated, processed, handled or originating on or prior to the Closing Date at any of the Properties giving rise to liability under any Environmental Law; or
d. without limiting the generality of any of the foregoing provisions of this subparagraph (6), any Environmental Claim as a result of activities, events, conditions or occurrences at any of the Properties prior to the Closing Date;
(7) Without being limited by subparagraph (1) of this Section 11.1 (a) and without regard to the fact that any one or more of the items referred to in this Section 11.1(a)(7) may be disclosed in any of the Schedules to this Agreement or in any documents included or referred to therein or may be otherwise known to Purchaser at the date of this Agreement or on the Closing Date, any claim or liability for personal injury, property damage or economic loss or other Damages of any kind whatsoever arising out of (A) dioxin being or having been present in kaolin, feldspar or ball clay mined, processed, manufactured or sold by the Subsidiaries or the exposure of Persons to such dioxin or silica, which result from or are caused by activities, events, conditions or occurrences arising prior to the Closing Date, regardless of when liability is asserted, or (B) employee health and safety matters referenced in Schedule 11.1(a)(7), in each case which result from or are caused by activities, events, conditions or occurrences arising as indicated in Schedule 11.1(a)(7) regardless of when liability is asserted;
(8) Any claims or liability asserted against the Subsidiaries in respect of payments received by any of them from OCF prior to its filing of a petition under Chapter 11 of the Bankruptcy Code; and
(9) Any Damages asserted against, or paid, suffered or incurred by, the Purchaser (provided the Purchaser may not compromise or settle a claim without the consent of Seller) and resulting from, based upon, or arising out of (i) any dispute or agreement (or termination of any agreement ) between Seller shall have no obligation to indemnify Purchaser for Damages until or any of its affiliates (including the aggregate Damages exceed $20,000 and, in such event, for Subsidiaries) and Zemex U.S. Corporation or any of its affiliates arising from the full amount of such Damages, Zemex Agreement or (ii) Sellerany dispute or litigation between the Purchaser or any of its affiliates and Zemex U.S. Corporation or any of its affiliates related to negotiations, discussions, or agreements involving any potential acquisition by the Purchaser of any assets directly or indirectly owned by Seller that were the subject of the Zemex Agreement (other than any alleged negotiations or agreements by or on behalf of Purchaser or its affiliates with Zemex U.S. Corporation or any of its affiliates or agents) (a "Zemex Dispute"). For purposes of this subsection, "Damages" shall include, but not be limited to, reasonable attorneys' aggregate liability fees incurred in responding to discovery requests or responding to any form of discovery or appearances at trial, travel costs and costs related to individual legal representation of any officer of a Purchaser required to appear in U.S. courts for matters described herein, including in connection with the existing lawsuit described in Section 4.15(e) hereof.
(10) (A) Past, present or future Third Party Claims arising out of, or in any way connected with, the ownership of any mineral interest by said third party (other than the right to receive royalty payments) pursuant to any grant or reservation in the prior instruments described on Schedule 11.1(a)(10) hereto, and (B) any Damages incurred by Purchaser arising out of the matter described in Schedule 4.11(c)(i).
(b) For the purposes of this Agreement, Damages shall include, without limitation: (i) reasonable attorneys', accountants', investigators', consultants' and experts' fees and expenses, sustained or incurred in no event exceed connection with the Purchase Consideration, defense or investigation of any Third Party Claim; (ii) expenses (computed on an after-Tax basis) reasonably incurred to compensate employees for any costs or ramifications associated with compliance with (or lack of compliance with) the requirements of Section 401(a) or 401(k) of the Code; and (iii) costs and expenses reasonably incurred and necessary to bring the Subsidiaries' respective assets and business into compliance with Environmental Laws taking into account any existing grandfather provisions (and which non-compliance occurred prior to the Closing Date) including, without limitation:
(1) costs and expenses associated with all filings, court orders, awards or directives issued in connection with such compliance;
(2) costs and expenses incurred for the protection of any of the Subsidiaries, their respective employees, members of the public and the environment, and for the prevention of harm to any of the Subsidiaries, their respective employees, members of the public and the environment;
(3) costs and expenses resulting from the loss of use of any Real Property or Leased Premises, including, without limitation, moving and relocation costs;
(4) costs and expenses of additions to and modifications of the Equipment and the Leased Premises;
(5) costs of sampling, monitoring or other testing programs and laboratory equipment; and
(6) all legal, engineering and consulting fees and expenses related to any of the foregoing.
(c) Seller shall have no obligation not be responsible to indemnify Purchaser with respect to any losses, liabilities, damages or expenses as to which Purchaser is otherwise entitled to indemnification pursuant to Section 11.1 (exclusive of Sections 11.1(a)(2), 11.1(a)(3), 11.1(a)(4), 11.1(a)(5), 11.1(a)(7), and 11.1(a)(9) thereof) unless and until (i) the aggregate amount (taking into account the $10,000 baskets in the following subsection (ii)) of such losses, liabilities, damages and expenses incurred by Purchaser exceeds Three Hundred Fifty Thousand Dollars ($350,000) and then only with respect to the amount that in the aggregate is in excess of Three Hundred Fifty Thousand Dollars ($350,000), and (ii) the amount of any one, individual loss, liability, damage or expense incurred by Purchaser exceeds Ten Thousand Dollars ($10,000).
(d) Any claim for any claims made indemnification by Purchaser under Section 11.1 (a) shall be asserted by written notice to Seller within the appropriate Claim Period. Any matters as to which a claim has been asserted under Section 11.1(a) within the Claim Period and which are pending or unresolved before the end of the Claim Period shall continue to be covered by Section 11.1(a) until finally terminated or resolved. For the purposes of this Agreement, the relevant "Claim Period" with respect to any claim for indemnification pursuant to this Section 7.1 11.1 shall be the following:
(1) With respect to any claim under Section 11.1(a)(1) (other than with respect to a breach of Sections 4.1, 4.2, 4.3 (except subparagraph 4.3(c)), 4.4, 4.5, 4.11, 4.12(a), 4.13, 4.15, 4.16, 4.17, 4.23, 4.24, 4.34 and 4.36), the Claim Period shall be the period commencing on the Closing Date and ending on the last day of the eighteenth full calendar month following the Closing Date.
(2) With respect to any claim under Section 11.1(a)(1) with regard to a breach of Section 4.16 or 4.17 or any claim under Sections 11.1(a)(3), (4) or (5), the Claim Period shall be the period commencing on the Closing Date and ending on the date which is six months after twenty four the expiration of the underlying statutes of limitation.
(243) months With respect to any claim under Section 11.1(a)(1) with regard to a breach of Sections 4.11, 4.13, 4.15, 4.34 and 4.36, the Claim Period shall be the period commencing on the Closing Date and ending on the date which is three years after the Closing Date.
(4) With respect to any claim under Section 11.1(a)(6), the Claim Period shall be the period commencing on the Closing Date and ending on the date which is five years after the Closing Date.
(5) With regard to any claim under Section 11.1(a)(1) with regard to a breach of Sections 4.1, 4.2, 4.3 (except subparagraph 4.3(c)), 4.4, 4.5, 4.12(a), 4.23 or 4.24, or with regard to a claim under Section 11.1(a)(7), 11.1(a)(8) or 11.1(a)(9) and 11.1(a)(10), the Claim Period shall be the period commencing on the Closing Date and shall continue thereafter without limitation, provided any such claim shall be made no later than six months after discovery thereof by Purchaser.
(e) Notwithstanding any provision in this Agreement to the contrary, the maximum aggregate liability of Seller with respect to claims made pursuant to Sections 11.1 (other than Sections 11.1(a)(2), 11.1(a)(3), 11.1(a)(4), 11.1(a)(5), 11.1(a)(7), 11.1(a)(8) and 11.1(a)(9) hereof) shall be 30% of the Purchase Price. The maximum aggregate liability of Seller with respect to claims made pursuant to the remaining provisions of Section 11.1(a) shall not exceed the amount by which (x) the Purchase Price exceeds (y) all amounts paid by Seller pursuant to the preceding sentence. In addition, Seller shall not be liable with respect to:
(1) any contingent, speculative, non-quantifiable or punitive damages, or any consequential, incidental or special damages not directly resulting from the inaccuracy or breach (by way of example, the failure of title to equipment or mineral properties would entitle Purchaser to damages for the value of the equipment or mineral properties, plus reasonable attorneys' fees and expenses if applicable, but not the speculative future profits that might have been earned by the equipment or mineral properties);
(2) any losses, damages, liabilities or expenses with respect to which Purchaser had a reasonable opportunity, but failed, in good faith to mitigate its loss including but not limited to, its failure (other than with respect to Environmental Indemnification Claims) to use commercially reasonable best efforts to assert non-insurance contractual rights and its failure to use commercially reasonable best efforts to recover under a policy of insurance, it being understood that this provision shall not obligate Purchaser to purchase any insurance coverage it does not currently have; or
(3) except as set forth in Section 11.1(a)(10), title to Real Estate, to the extent Seller has delivered title insurance policies (or commitments therefor) conforming to the requirements of Section 8.3(n); or
(4) any losses, damages, liabilities or expenses to the extent arising from or caused by actions taken by Purchaser or its Affiliates or their respective officers, directors or employees after the Closing. (f)
(1) Purchaser shall not be entitled to indemnification for Damages with regard to any matter set forth in Section 11.1(a), until such time as the cumulative amount for such Damages exceeds the amount of reserves, if any, specifically allocated for such matter as set forth in the Final Balance Sheet.
(2) Damages sustained or incurred arising out of any misrepresentations or breaches for which indemnification is provided under Section 11.1(a)(1) shall be determined without regard to any qualification or exception relating to materiality or Material Adverse Effect contained in any such representation or warranty giving rise to the Claim for indemnity hereunder.
Appears in 1 contract
Indemnification by Seller. (a) In addition to and not in limitation of Seller's indemnification obligations set forth elsewhere in this Agreement, Seller shall indemnify defend, indemnify, and hold harmless Purchaser Buyer and shall reimburse Purchaser for its affiliates and their respective officers, directors, shareholders, agents and employees (individually, a "Buyer Indemnitee" and collectively the "Buyer Indemnitees"), from and against any lossand all claims, liabilitylosses, claimdeficiencies, damageliabilities, expense obligations, damages, penalties, punitive damages, costs, and expenses (including, without limitation, costs of investigation legal, accounting and defense and reasonable attorney's consulting fees) ), whether or diminution of value not resulting from third party claims (collectively, "DamagesLosses") arising from ), suffered by a Buyer Indemnitee, which arise out of or in connection withresult from:
(ai) any inaccuracy or misrepresentation in or breach of any of the representations and warranties of representations, warranties, covenants or agreements made by Seller in this Agreement or in any document, certificate or affidavit delivered by Seller pursuant to the provisions of this Agreement, Agreement the effect of which would have a Material Adverse Effect (without duplicative regard to references to "materiality" or any actions, omissions or state Material Adverse Effect" in the context of facts inconsistent with any such representation representation, warranty, covenant or warranty (for purposes of this clause (a)agreement, each schedule and exhibit to this Agreement shall be deemed a representation and warrantyas applicable);
(bii) any failure by Seller to perform Environmental Condition or comply with any agreement made by it under Environmental Compliance Liability, as those terms are defined in this Agreement, in respect of the Leased Premises, regardless of whether any such Environmental Condition, the exposure thereto or any Environmental Compliance Liability resulted from activities of Seller or Seller's predecessor in interest in respect of the Leased Premises, the effect of which would have a Material Adverse Effect (without duplicative regard to references to "materiality" or Material Adverse Effect" in the context of any such representation, warranty, covenant or agreement, as applicable);
(ciii) any operations CERCLA, or business conductedsimilar state law, commitment made, service rendered or condition existing or any action taken or omitted for materials handled by or on behalf the Leased Premises whether on-site or elsewhere, on or prior to the Effective Time of SellerClosing the effect of which would have a Material Adverse Effect (without duplicative regard to references to "Materiality" or Material Adverse Effect" in the context of any such representative, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinwarranty, covenant or agreement as applicable);
(div) any claim by any person for brokerage Tax, obligation, liability, debt or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with commitment of Seller which is not an Assumed Obligation (or any person acting on its behalf) in connection with any of the transactions contemplated hereinis an Excluded Obligation), whether or not paid by Buyer; and
(ev) any other matter related to the conduct of the Business by Seller or the use or ownership of the Purchased Assets prior to the Effective Time of Closing (including, but not limited to, all acts, omissions and conditions existing or occurring prior to the Effective Time of Closing for which any of the Buyer Indemnitees is alleged to be liable pursuant to any successor or similar theory of liability).
(vi) Notwithstanding the foregoing, the Seller shall not be liable to the Buyer Indemnitees for indemnification claims under Section 6.2 until the aggregate amount of indemnification claims under Section 6.2 exceeds $25,000 in the case of a single claim (the "Seller's failure to comply with Threshold Amount") or $300,000 in the aggregate in the case of all claims taken together (the "Bulk Sales Laws" under Seller's Aggregate Threshold Amount"), and in the Uniform Commercial Codeevent such aggregate claims exceed the Seller's Aggregate Threshold Amount, the Seller shall be liable for the full amount of such aggregate claims; provided, however, that (i) Seller shall have no obligation not be liable for the payment of indemnification claims asserted by written notice to indemnify Purchaser for Damages until the Seller on or before (A) June 30, 1998, in excess of the aggregate Damages exceed maximum amount of $20,000 and400,000 or (B) December 31, 1998, in such event, for excess of the full aggregate maximum amount of such Damages$300,000 (collectively, the "Seller's Indemnification Caps"), as the case may be; and provided further, that notwithstanding any provision in this Agreement to the contrary, the dollar limitations in respect of a single claim and in respect of the aggregate claims and in respect of the Seller's Indemnification Caps shall not apply to (x) claims pertaining to a breach of the representations, warranties, covenants and obligations contained in Sections 3.4, 3.5 or 3.6 of this Agreement, (iiy) the covenants and obligations set forth under Section 5 or (z) any fraud or intentional misrepresentation on the part of the Seller or things or matters that are intentionally or fraudulently hidden or concealed by or on behalf of the Seller' . In determining whether the aggregate liability amount for Damages shall which the Buyer Indemnitees are entitled to be indemnified hereunder is at least the Seller Threshold Amount or the Seller Aggregate Threshold Amount, as the case may be, or is or would be in no excess of the Seller's Indemnification Caps, as applicable, any requirement contained in this Agreement that any misrepresentation or breach of warranty or covenant or event exceed the Purchase Considerationor fact be "Material" or have a "Material Adverse Effect" in order to constitute a misrepresentation, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser omission or breach of warranty, covenant or agreement under this Section 7.1 after twenty four (24) months after the Closing DateAgreement shall be disregarded in its entirety.
Appears in 1 contract
Indemnification by Seller. (a) Subject to paragraph (b) below, after the Closing, Seller shall indemnify hereby agrees to indemnify, defend and hold Buyer, harmless Purchaser against and with respect to, and shall reimburse Purchaser for Buyer for, any loss, liability, claim, damage, expense (including, without limitation, costs and all Damages which Buyer may suffer or incur as a result of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(ai) any breach or inaccuracy in of any of the representations and warranties representation or warranty of Seller made in this Agreement or in any certificate delivered certificate, document or instrument prepared by Seller and delivered to Buyer pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule the terms and exhibit subject to this Agreement shall be deemed a representation and warranty)the conditions hereof;
(bii) any failure by Seller to carry out, perform or otherwise fulfill or comply with any agreement made by it covenant, agreement, undertaking or obligation of Seller under this Agreement;
(ciii) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinthe Retained Liabilities;
(div) any claim by any person for brokerage Person claiming a broker’s or finder's fees ’s fee or commissions commission, or similar payments based upon any agreement payment or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) remuneration in connection with any respect of the transactions contemplated herein; and
(ev) any suit, action or other proceeding brought by any Governmental Authority or any other Person arising out of, or related to, any of the matters referred to in the foregoing clauses (i) through (iv) of this Section 10.2(a).
(b) Seller's failure obligation to comply with indemnify Buyer pursuant to Section 10.2(a) shall be subject to all of the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that following limitations:
(i) Buyer shall be entitled to indemnification only for those Damages arising with respect to any claim as to which Buyer has given Seller shall have no obligation to indemnify Purchaser written notice within the appropriate time period set forth in Section 10.1 hereof for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, claim.
(ii) Seller' aggregate liability for Damages shall in no event exceed The parties agree that the Purchase Consideration, payment of any and (iii) Seller shall have no obligation to indemnify Purchaser for any all claims made by Purchaser under this Section 7.1 after twenty four (24) months after Buyer for indemnification hereunder, for whatever reason, other than for claims for indemnification with respect to any Retained Liabilities, shall be limited to an aggregate amount equal to the Closing DatePurchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement (Equity Media Holdings CORP)
Indemnification by Seller. Seller shall hereby agrees to indemnify and hold harmless Purchaser Buyer, its officers, directors, employees, agents, advisers, affiliates and shall reimburse Purchaser for any associates harmless, from all loss, liability, claim, damage, liability and expense (including, without limitation, costs of investigation including reasonable attorneys' fees and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or expenses in connection with:
(a) with the contest of any inaccuracy in claim and interest on any claim paid by Buyer), which Buyer may incur or sustain by reason of the representations and warranties of fact that (i) Seller in this Agreement should breach or in any certificate delivered by Seller pursuant fail to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated terms, conditions, covenants or agreements or any exhibits attached hereto or any of them contained herein; and
, (eii) Seller's failure any representations or warranties made by Seller in this Agreement, the Exhibits, or in any certificates, lists or documents delivered pursuant hereto should prove to comply be false or erroneous, (iii) any claims, actions, suits, investigations or proceedings, pending or threatened, are or have been made or commenced by, against, involving, relating to or affecting any part of the Service Assets with respect to any state of facts existing or any event occurring prior to the "Bulk Sales Laws" under Closing Date except for the Uniform Commercial CodeAssumed Liabilities, or (iv) any action, arbitration, suit, proceeding, compromise, settlement, assessment or judgment arising out of or incidental to any of the matters indemnified against in this Paragraph 8.01(a); provided, however, that (i) Seller shall have no obligation not be obligated to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andBuyer and hold it harmless with respect to any settlement of a claim to which Seller has not consented, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) which consent by Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datenot unreasonably be withheld.
Appears in 1 contract
Indemnification by Seller. Subject to the limitations set forth in this Article 10, Seller hereby covenants and agrees that, to the fullest extent permitted by Applicable Law, it shall defend, indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for its Affiliates and Representatives, and all heirs, executors, personal representatives, successors and assigns of the foregoing (collectively, the “Buyer Indemnified Persons”), for, from and against any loss, liability, claim, damageamount paid in settlement of claims, expense damages, expense, cost (including, without limitation, including costs of investigation and defense defense, reasonable attorneys’ fees and reasonable attorney's fees) expenses and costs of enforcing any claim for indemnification hereunder), interest, penalties, fines or diminution of value any other Liability, whether or not involving a Third-Party Claim, (collectively, "Damages"“Losses ”) arising from suffered or in connection withincurred by the Buyer Indemnified Persons (or any of them) resulting from:
(a) any inaccuracy in breach of any of the representations and warranties of representation or warranty made by Seller or any Shareholder in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)Closing Document;
(b) any failure by Retained Seller to perform or comply with any agreement made by it under this AgreementLiability;
(c) any operations breach of any covenant, agreement or business conducted, commitment made, service rendered or condition existing obligation of Seller or any action taken Shareholder in this Agreement or omitted by or on behalf of Seller, except for in any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinClosing Document;
(d) any claim by any person Person for any brokerage or finder's fees or commissions ’s fee, commission or similar payments payment based upon any agreement or understanding made, or alleged to have been made made, by any such person Person with Seller or any Subsidiary (or any person acting Affiliate or Representative thereof) or any Shareholder in connection with this Agreement or any of the Contemplated Transactions;
(e) the environmental conditions and violations identified on its behalfSchedule 10.2(e), subject to the provisions of Section 10.13.
(f) the matters identified on Schedule 10.2(f) and the subject matter thereof;
(g) the EEOC and other employment-related matters identified on Schedule 10.2(g) and the subject matter thereof;
(h) the provisions of Section 6.17; and/or
(i) any claim by Corporate Solutions Group, LLC (or any successor, assign or Affiliate thereof) (“CSG”) for fees, commissions, expense reimbursement or other amounts owing pursuant to that certain letter agreement dated October 1, 2004 between CSG and Seller in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for transaction entered into by Buyer or any claims made by Purchaser under this Section 7.1 after twenty four (24) months Affiliate thereof on or after the Closing Date, other than a transaction with any of the Persons listed on Schedule 10.2(i) (or any successor, assign or Affiliate thereof).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (West Pharmaceutical Services Inc)
Indemnification by Seller. Seller shall agrees to indemnify and hold harmless Purchaser from and shall reimburse Purchaser for against any lossand all losses, liabilitycosts, claimdamages, damage, expense claims and expenses (including, without limitation, costs of investigation and defense and including reasonable attorney's attorneys' fees) or diminution which Purchaser may sustain at any time by reason of value (collectively, "Damages") arising from or in connection with:
(a) any debt, liability or obligation of Seller except obligations assumed by Purchaser, (b) any liability or obligation of any kind relating to the operations of the Acquired Assets or Dealership prior to the Closing Date, (c) any presence of hazardous materials or toxic substances located at the Closing Date in or around the Premises including without limitation any such related to the underground storage tanks, or (d) the breach or inaccuracy of or failure to comply with, or the existence of any facts resulting in the inaccuracy of, any of the representations and warranties warranties, representations, covenants or agreements of Seller contained in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (document delivered pursuant hereto or any person acting on its behalf) in connection herewith or with any the closing of the transactions contemplated herein; and
(e) hereby. The parties acknowledge and agree that Purchaser shall have the right to repair automobiles sold and/or serviced by Seller to correct miscellaneous customer complaints that Purchaser determines in Purchaser's reasonable judgment are an obligation of Seller provided that the total of repairs for any one automobile without Seller's failure prior approval shall not exceed the sum of ONE THOUSAND DOLLARS ($1,000). The total amount to comply with be paid by Seller without Seller's prior approval shall not exceed FIVE THOUSAND DOLLARS ($5,000). Notwithstanding the "Bulk Sales Laws" under above, Seller's liability hereunder shall be equal to the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, the value of the consideration received by Seller in this transaction. Further the obligations of Seller as provided for herein shall be limited to a period of three (ii3) Seller' aggregate liability for Damages shall in no event exceed years from the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Firstamerica Automotive Inc /De/)
Indemnification by Seller. From and after the Closing (but subject to the provisions of this Article 4), Seller shall will indemnify Buyer, the Company, each of Buyer’s Affiliates and each of the Company’s Affiliates after the Closing (all such foregoing persons, collectively, the “Buyer Indemnitees”) and hold the Buyer Indemnitees harmless Purchaser from any Losses incurred by a Buyer Indemnitee, to the extent resulting from:
(a) a breach or inaccuracy of any representation or warranty contained in Article 2 (except for a breach of any representation or warranty of Section 2.09(a), which repairs shall be (i) recorded as an adjustment to Invested Capital in the calculation of Closing Invested Capital); provided, however, that, solely for purposes of calculating any Losses (but not for determining whether any breach of a representation or warranty has occurred), if any such representation is qualified by the use of the term “Material Adverse Effect” or by the word “material” or by any word formed from such words, then such representation or warranty will be construed as if the word “material” (and shall reimburse Purchaser for such words formed therefrom) or the term “Material Adverse Effect” were not included in such representation or warranty;
(b) fraud by or on behalf of Seller;
(c) any lossbreach by the Seller of its obligations under the Restrictive Covenant Agreement;
(d) any nonfulfillment or breach of any covenant or agreement of the Company (required to be performed prior to or at the Closing) or Seller (required to be performed at any time) contained in this Agreement;
(e) any Indebtedness or Transaction Expenses that are not (i) paid at or prior to the Closing, (ii) set forth in the Financial Statements or otherwise recorded as a liability, claimor (iii) taken into account in determining the Final Aggregate Closing Consideration;
(f) except as otherwise permitted by Section 5.05, damageany obligation of the Company to Seller or any Affiliate of Seller for events, expense circumstances, actions, omissions, or liabilities arising prior to the Closing Date under any contract, agreement, arrangement, lease, or other understanding existing prior to the Closing Date between the Company, on the one hand, and Seller or any Affiliate of Seller, on the other hand (including, without limitation, costs of investigation any obligation under any Real Property Lease relating to any environmental condition existing on such Real Property prior to the Closing Date), other than ordinary course obligations for rent, insurance, taxes, and defense similar accruals under the Real Property Leases between the Company and reasonable attorney's fees) Seller or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties Affiliate of Seller to the extent set forth in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)leases;
(bg) any failure by Seller Taxes, to perform the extent not accrued on the Financial Statements or comply with any agreement made by it under this Agreementtaken into account in determining the Final Aggregate Closing Consideration;
(ch) the present value to Buyer and the Company and its Subsidiaries of any operations or business conducted, commitment made, service rendered or condition existing expected Tax benefits relating to the expected increase in tax basis in the Company’s or any action taken of its Subsidiaries’ assets as reflected in the Consideration Allocation which are not obtained, in each case attributable to the Company’s or omitted by any of its Subsidiaries’ failure to qualify as a “qualified subchapter S subsidiary” or Seller’s failure to qualify as an S-corporation on behalf or before the Closing Date (compared with the amount of SellerTaxes imposed and present value of expected Tax benefits had the Company and its Subsidiaries qualified as a “qualified subchapter S subsidiary” and had Seller qualified as an S-corporation on the Closing Date), except for any claims for which Purchaser is required to indemnify Seller pursuant to the extent resulting from a breach by Buyer of the covenants set forth in Section 7.2 herein5.01;
(di) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting the matters described on its behalf) in connection with any of the transactions contemplated herein; andSchedule 4.03(i), if any;
(ej) Seller's failure Third Party Claims relating to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; providedJacksonville Property, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationwhether known or unknown, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months whether arising from circumstances existing before or after the Closing Date.;
(k) Third Party Claims relating to the Leased Real Property in Wilsonville, OR or Phoenix, AZ, to the extent arising from or relating to actions, omissions, events, or circumstances occurring or existing before the Closing;
Appears in 1 contract
Indemnification by Seller. From and after the Closing, Seller shall will ------------------------- indemnify Buyer and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value the Company (collectively, the "DamagesBuyer Indemnified Parties") arising from or in connection with------------------------- against and hold them harmless from:
(a) All Losses resulting from or arising out of any inaccuracy in material breach of any of the representations and warranties of representation or warranty made by Seller in this Agreement or in any certificate delivered by Seller pursuant to this Related Agreement; provided, or any actionshowever, omissions or state of facts inconsistent with any that if such representation or -------- ------- warranty (for purposes of is subject to a materiality limitation, the materiality limitation in this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);Section 9.2(a) will not impose any additional requirement; ---------------
(b) any Any breach of or failure by Seller to perform any covenant or comply with obligation of Seller set out or contemplated in this Agreement or any agreement made Related Agreement or any document delivered by it under this AgreementSeller at Closing;
(c) All Taxes that have become due and payable during, or which have accrued with respect to the Company for, any operations period included in the Tax Indemnification Period and that have not been paid prior to the Closing Date or reserved for in the Company Balance Sheet or accrued in the ordinary course of business conductedsince the Company Balance Sheet Date. Any Taxes attributable to the Company payable as a result of an audit of any Tax Return shall be deemed to have accrued in the period to which such Taxes are attributable, commitment made, service rendered or condition existing or and any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required Taxes attributable to indemnify Seller pursuant to a Straddle Period shall be determined in accordance with Section 7.2 herein;8(c); -------------
(d) All Losses resulting from or arising out of the claims of any claim by any person for brokerage broker, finder or finder's fees other Person acting in a similar capacity on behalf of either of the Company or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated hereinherein contemplated; and
(e) Seller's failure Any and all actions, suits, proceedings, demands, assessments, judgments, costs and reasonable legal and other expenses incident to comply with any of the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Dateforegoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Safeguard Health Enterprises Inc)
Indemnification by Seller. (a) Seller shall will indemnify and hold harmless Purchaser Buyer against any and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or all Damages incurred by Buyer in connection withwith or arising from:
(ai) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered breach by Seller pursuant to this Agreementof, or any actionsother failure of Seller to perform, omissions any of its covenants, agreements, or state obligations in this Agreement; or
(ii) any breach of facts inconsistent with any such warranty or the inaccuracy of any representation or warranty (for purposes of Seller contained in this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);Agreement.
(b) Seller will indemnify and hold harmless Buyer against any failure and all Environmental Claims asserted, but only to the extent that such Environmental Claims are based upon or otherwise relate to:
(i) subject to 5.2(b)(ii), Seller's performance of its obligations under Section 4.1of this Agreement with respect to Remediation of the NIBW Site; or
(ii) any third party claims, including but not limited to claims for natural resource damage, relating to Seller's Remediation of the NIBW Site; or
(iii) any Environmental Liability for the offsite disposal of Hazardous Substances by Seller to perform on or comply with any agreement made by it under this Agreement;before the Closing Date; or
(civ) any operations Condition in, at, on, under, or business conductedemanating from the Premises which Condition (A) exists at or prior to the Closing Date; (B) was caused by Seller; and (C) either violates Environmental Law, commitment maderequires Remediation under Environmental Law, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required involves onsite contamination at the Owned Premises that Buyer otherwise needs to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Codeaddress; provided, however, that this Section 5.1(b)(iv) shall not apply to Environmental Claims related to (i) Seller shall have no asbestos in buildings at the Owned Premises; or (ii) improvements or repairs to the Owned Premises unless the Damages involved exceed $300,000.
(c) Seller's obligation to indemnify Purchaser under Section 5.1 of this Agreement shall be subject to the procedures for Damages until indemnification in Section 7.5 of the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Asset Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateAgreement.
Appears in 1 contract
Indemnification by Seller. Seller shall hereby agrees to defend, indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for Guarantor, their respective successors, assigns and affiliates (collectively, the "Buyer Indemnitees") from and against any lossand all losses, liabilitydeficiencies, claimliabilities, damagedamages, expense (includingassessments, without limitationjudgments, costs and expenses, including attorneys' fees (both those incurred in connection with the defense or prosecution of investigation the indemnifiable claim and defense and reasonable attorney's fees) or diminution those incurred in connection with the enforcement of value this provision), (collectively, "DamagesBuyer Losses") arising ), caused by, resulting from or in connection with:
arising out of: (a) any inaccuracy in any (i) breaches of the representations and warranties hereunder on the part of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty Seller; (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(bii) any failure failures by Seller to perform or comply with otherwise fulfill any undertaking or other agreement made by it under this Agreement;
or obligation hereunder; (ciii) any operations value added taxes ("VAT") or business conductedsimilar taxes assessed by the United Mexican States by reason of the sale of the Assets hereunder; and/or (iv) any claims which may be brought by a Management Employee against SCM, commitment madeBuyer or Guarantor, service rendered or condition existing or any action taken of their subsidiaries or omitted by related entities, which claims arise out of such Management Employee's employment or on behalf of Seller, except for any claims for which Purchaser is required separation from employment from SCC prior to indemnify Seller pursuant to Section 7.2 herein;
the Closing; and/or (db) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged and all actions, suits, proceedings, claims, demands, incident to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Codeforegoing or such indemnification; provided, however, that if any claim, liability, demand, assessment, action, suit or proceeding shall be asserted in respect of which a Buyer Indemnitee proposes to demand indemnification (i) "Buyer Indemnified Claims"), such Buyer Indemnitee shall notify Seller thereof, provided, further, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure. Subject to rights of or duties to any insurer or other third Person having liability therefor, Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount right promptly upon receipt of such Damagesnotice to assume the control of the defense, compromise or settlement of any such Buyer Indemnified Claims arising out of a lawsuit or claim brought by a third party (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationprovided that any compromise or settlement must be reasonably approved by Buyer), and (iii) including, at its own expense, employment of counsel reasonably satisfactory to Buyer; provided, however, that if Seller shall have no obligation exercised its right to indemnify Purchaser for assume such control, Buyer may, in its sole discretion and at its expense, employ counsel to represent it (in addition to counsel employed by Seller) in any claims made such matter, and in such event counsel selected by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateSeller shall be required to cooperate with such counsel of Buyer in such defense, compromise or settlement.
Appears in 1 contract
Indemnification by Seller. (1) Seller and Parent, jointly and severally, agree to and shall indemnify in full Purchasers and defend and hold Purchasers harmless Purchaser and shall reimburse Purchaser for against any loss, liability, claimdeficiency, damage, expense or cost (including, without limitation, costs of investigation including reasonable legal fees and defense and reasonable attorney's feesexpenses) or diminution of value (collectively, "DamagesLosses") arising from ), that the Purchasers may suffer, sustain or in connection with:
become subject to as a result of (ai) any inaccuracy misrepresentation in any of the representations and or breach of any of the warranties of Seller or Parent contained in this Agreement or in any certificate delivered by Seller exhibits, schedules or certificates or other agreements or documents specifically identified in this Agreement for delivery pursuant to the terms of this AgreementAgreement or otherwise mutually agreed upon and executed by the parties (collectively, the "Related Documents"), (ii) any breach of, or failure to perform, any actions, omissions agreement or state covenant of facts inconsistent with any such representation Seller or warranty (for purposes of this clause (a), each schedule and exhibit to Parent contained in this Agreement shall be deemed a representation and warranty);
or any of the Related Documents, (biii) except as otherwise reserved for on the Latest Balance Sheet, any claim of liability for breach of warranty or contract arising out of the operation of the Business prior to the Closing Date, or (iv) any failure claim of liability for injury or damage to person or property caused or alleged to have been caused by Seller to perform the use or comply with any agreement made by it under this Agreement;
(c) any operations operation of products sold, installed, monitored or business conducted, commitment made, service rendered or condition existing or any action taken or omitted serviced by or on behalf of Seller prior to the Closing Date, or (v) any claim of non-compliance with Environmental Laws by Seller or Parent or any of the properties owned or leased by Seller or Parent or for damages as a result thereof, or (vi) any claim for refund or reimbursement of any payment made to Seller, except for Parent or Purchaser by any claims for which customer of Seller's Business based on preference or priority as asserted by any receiver or trustee in bankruptcy or bankruptcy court (collectively, "Purchaser is required to Losses").
(2) Seller shall also indemnify Purchasers and hold Purchasers harmless against and in respect of any Purchaser Losses resulting or arising from the rights of any creditors of Seller pursuant to Section 7.2 herein;any bulk sales laws which may apply under the laws of the States of Kansas and Ohio, except to the extent that such rights may result from the failure of Purchaser to perform its obligations hereunder.
(d3) Any Losses shall be determined after taking into account any claim by recoveries that an Indemnified Party (defined below) actually receives from insurance policies or other third parties or other resources specifically identified or referenced in this Agreement; it being the intention of the parties to avoid double recovery. The determination of Losses shall also exclude the effect of any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding multiplier that may be alleged to have been made used by any such person with Seller (or any person acting on Purchaser in its behalf) in connection with any determination of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; providedPurchase Price. Any Losses shall include punitive damages, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationif available, and (iii) Seller shall have no obligation exclude consequential damages except those paid or payable by the Indemnified Party to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datea third party.
Appears in 1 contract
Indemnification by Seller. Seller shall indemnify indemnify, hold harmless, defend and hold harmless Purchaser bear all costs of defending Buyer, together with its successors and shall reimburse Purchaser for assigns, from, against and with respect to any and all damage, loss, liability, claim, damagedeficiency, expense (includingincluding any reasonable attorney and accountant fees, without limitationlegal costs or expenses), costs of investigation and defense and reasonable attorney's fees) action, suit, proceedings, demand, assessment or diminution of value judgment to or against Buyer (collectively, collectively referred to as the "DamagesAggregate Net Loss") arising from out of or in connection with:
(a) any inaccuracy in debt, obligation, commitment or liability of Seller which is not expressly assumed by Buyer herein or which is expressly assumed by Seller herein, whether arising prior to, on or after the Closing Date and whether or not disclosed to Buyer herein;
(b) any breach or violation of, or nonperformance by, Seller of any of the representations and warranties of Seller its representations, warranties, covenants or agreements contained in this Agreement or in any document, certificate delivered by Seller or schedule required to be furnished pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted liability incurred by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any Buyer as a result of the transactions contemplated herein; and
(e) Seller's failure to comply waiver of compliance with the "Bulk Sales Laws" under bulk transfer laws contained in Section 8.5. Notwithstanding the Uniform Commercial Code; providedforegoing, however, that (i) Seller shall have no obligation liability to indemnify Purchaser Buyer (a) for Damages any Aggregate Net Loss (other than in connection with a purchase price adjustment as herein provided or as a result of fraud or willful misconduct) until the aggregate Damages total Aggregate Net Losses incurred by Buyer exceed $20,000 and6,000, in such event, for and then only to the full amount extent of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationexcess, and (iiib) Seller shall have no obligation to indemnify Purchaser for the amount of any claims made by Purchaser under this Section 7.1 after twenty four Aggregate Net Losses (24other than as a result of fraud or willful misconduct) months after exceeding the Closing DatePurchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement (Masada Security Holdings Inc)
Indemnification by Seller. Seller shall (a) From and after the Closing, Aon and Seller, jointly and severally, agree to indemnify and hold harmless Purchaser each Buyer Group Member from and shall reimburse Purchaser for against any lossand all losses, liabilitycosts, claimsettlement payments, damageawards, expense judgments, fines, penalties, damages, deficiencies or other charges, claims, liabilities, lawsuits, demands and expenses, including reasonable fees and disbursements of counsel (includingwhether or not arising out of third-party claims), without limitationand all amounts arising from or relating to investigation, costs defense or settlement of investigation and defense and reasonable attorney's fees) or diminution any of value the foregoing (collectively, "“Damages"”) arising from or incurred by such Buyer Group Member in connection with, arising out of or resulting from:
(ai) any breach or inaccuracy in of any of the representations and warranties representation or warranty of Seller contained in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of SellerSeller hereunder at or prior to the Closing (without giving effect to any materiality, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinMaterial Adverse Effect or similar qualification contained therein);
(dii) any breach by Aon or Seller of, or failure by Aon or Seller to perform, any of its covenants or obligations contained in this Agreement that are required to be performed prior to the Closing Date;
(iii) any breach by Aon or Seller of, or failure by Aon or Seller to perform, any of its covenants or obligations contained in this Agreement that are required to be performed on or following the Closing Date, including Sections 8.1 and 8.2;
(iv) the Specified Lawsuit and the other matters listed on Schedule 5.12;
(v) the charging or collecting from the Clients of Broker Fees by the Company, APRM (solely with respect to the Business) or the Subsidiaries prior to the Closing Date or from the eligibility of the Company, APRM (solely with respect to the Business) or the Subsidiaries to collect Broker Fees from Clients prior to the Closing Date;
(vi) any claim by any person Person for brokerage or finder's ’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person Person with the Company or any Seller (or any person Person acting on its their behalf) in connection with any transactions contemplated by this Agreement;
(vii) the Undisclosed and Retained Liabilities;
(viii) any Damages arising from or related to the operation of ASPN prior to the Closing Date; or
(ix) in connection with the assignment and assumption of any lease with respect to any Change of Control Consent relating to Leased Real Property, (A) any consent fee, (B) any increase in rent relating to such existing lease for the remainder of the transactions term of such lease, (C) any reasonable increase in rent by any new lease for comparable space in excess of the current rent contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Codecurrent lease for the remainder of the term of the currently existing lease, and (D) any reasonable moving costs incurred by Buyer, in the case of (C) and (D), in the event Buyer is evicted from any properties leased pursuant to such lease as a result of a failure by Sellers to obtain any consent required to assign such lease to Buyer; provided, however, that (i) Aon and Seller shall have no obligation be required to indemnify Purchaser for and hold harmless under Section 11.1(a)(i), 11.1(a)(ii) and 11.1(a)(vii) with respect to Damages until incurred by Buyer Group Members only to the extent that:
(x) the aggregate Damages exceed $20,000 and, in such event, for the full amount of such DamagesDamages resulting from any single claim or aggregated claims arising out of the same facts, events or circumstances (iiprovided, that individual claims based upon the same act, event, omission or set of facts shall be deemed a single individual claim for purposes of this Section 11.1(a)(i)) Seller' aggregate liability exceeds $10,000 (the “Per Claim Deductible”) (it being understood that such amount shall be a deductible for Damages shall in no event exceed the Purchase Consideration, which Aon and (iii) Seller shall have bear no obligation to indemnify Purchaser for any claims made by Purchaser indemnification responsibility under this Section 7.1 after twenty four (2411.1(a)(i), 11.1(a)(ii) months after the Closing Date.and 11.1(a)(vii) above);
Appears in 1 contract
Indemnification by Seller. As an inducement to Buyer to enter into this Agreement, and acknowledging that Buyer is relying on the indemnification provided in this Article 11 in entering into this Agreement, Seller shall indemnify Parent agrees to indemnify, defend and hold harmless Purchaser Buyer and shall reimburse Purchaser for its Affiliates and subsidiaries and their respective employees, officers, directors, stockholders, representatives, agents, counsel, successors and assigns (collectively, “Buyer Affiliates”), from and against any lossclaims, losses, liability, claimobligations, damagelawsuits, expense (judgments, settlements, governmental investigations, deficiencies, damages, costs or expenses of whatever nature, whether known or unknown, accrued, absolute, contingent or otherwise including, without limitation, interest, penalties, reasonable attorneys’ fees, costs of investigation and all amounts paid in defense and reasonable attorney's fees) or diminution settlement of value the foregoing (collectivelycollectively “Losses”), "Damages") arising from suffered or incurred by Buyer or Buyer Affiliates as a result of or in connection with:
with the following: (ai) any inaccuracy and all debts, liabilities and obligations of Seller related to the Purchased Assets (other than the Assumed Liabilities), whether known or unknown, accrued, absolute, contingent or otherwise, arising out of or relating to (A) the business and operations of Seller or (B) the use of the Purchased Assets by Seller prior to or on the Closing Date on which such Purchased Assets were purchased or which arise after the relevant Closing Date on which such Purchased Assets were purchased but which are based upon or arise out of any act, transaction, circumstance, state of facts or other condition which occurred or existed on or before such Closing Date, whether or not then known, accrued, due or payable; (ii) any obligation relating to the employment or engagement of the Seller Parent’s or Seller Subsidiary’s employees or contractors by the Seller Parent or Seller Subsidiary, as applicable; (iii) any obligations relating to the Retained Liabilities or the ownership or operation of any Excluded Assets; (iv) a breach of any representation or warranty of Seller or Seller Parent or Seller Subsidiary in this Agreement that is not a Special Representation or a Fundamental Representation of Seller; (v) a breach of any Special Representation; (vi) a breach of any Fundamental Representation, (vii) a breach of any obligation, covenant or agreement of Seller or Seller Parent or Seller Subsidiary in this Agreement; and (viii) Sellers’ failure to comply with any bulk sales or fraudulent transfer laws that are applicable to the transactions contemplated by this Agreement . Notwithstanding anything in this Agreement to the contrary, solely for the purposes of the determination of the amount of Losses pursuant to Section 11.1(a), the representations and warranties of Seller in this Agreement that are qualified by materiality or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement Material Adverse Effect shall be deemed a representation and warranty);
(b) any failure by Seller to perform be made without such materiality or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateMaterial Adverse Effect qualifiers.
Appears in 1 contract
Indemnification by Seller. Subject to the terms of this Article 10, Seller shall indemnify and hold harmless Purchaser the Buyer, its Affiliates and shall reimburse Purchaser for any losstheir respective employees, liabilityofficers, claimdirectors, damagemembers, expense (includingmanagers, without limitationshareholders, costs of investigation agents, contractors, attorneys and defense and reasonable attorney's fees) or diminution of value representatives (collectively, "Damages"the “Buyer Indemnified Parties”) arising harmless from and against, and agrees to promptly defend any Buyer Indemnified Party from and reimburse any Buyer Indemnified Party for, any and all Losses which such Buyer Indemnified Party may at any time suffer or incur, or become subject to, as a result of or in connection with:
(a) 10.2.1 any untruth or inaccuracy in any representation or warranty of Seller contained in this Agreement or in any other Transaction Document; provided, however, that for purposes of determining an untruth or inaccuracy in any such representation or warranty for purposes of this Section 10.2.1, the representations and warranties of Seller that are limited or qualified by references to “material” or “materiality” or “Material Adverse Effect” or similar qualifications shall be construed as if they were not limited or qualified by such qualifications;
10.2.2 any failure of Seller duly to perform or observe any term, provision, covenant, agreement or condition contained in this Agreement or in the other Transaction Documents to be performed or observed by the Seller;
10.2.3 except as otherwise provided by and subject to the terms of Sections 3.3 and 3.4 above, any certificate delivered claim or cause of action by any party arising on or after the Closing Date against any Buyer Indemnified Party with respect to the obligations of Seller retained by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to under this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure other Transaction Documents, including any default by Seller under any of Leases arising prior to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateDate or any failure of Seller to satisfy any of its liabilities other than the Assumed Liabilities.
Appears in 1 contract
Samples: Real Property Purchase and Sale Agreement (Reading International Inc)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify indemnify, defend (or where applicable, pay the defense costs for) and hold harmless harmless, Purchaser and shall reimburse Purchaser for its Affiliates and each of their respective officers, directors, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value the foregoing (collectively, "Damages"the “Purchaser Indemnitees”) from, against and in respect of, any and all Losses imposed on, sustained, incurred or suffered by any such Purchaser Indemnitee to the extent relating to, arising from out of or in connection withresulting from:
(ai) (A) any breach or inaccuracy in any of the representations and warranties representation or warranty of Seller made in Section 4.05(b), Section 4.05(d), Section 4.05(f), Section 4.05(g), Section 4.05(h), Section 4.14(a) or Section 4.18, as of the Closing with the same effect as though made as of such time or (B) any breach or inaccuracy of any representation or warranty of Seller made in this Agreement or (other than those listed in any certificate delivered by Seller pursuant the preceding clause (A)), as of the Closing with the same effect as though made as of such time, except to this Agreement, or any actions, omissions or state of facts inconsistent with any the extent such representation or warranty is expressly made as of a specific date (in which case such representation or warranty shall be true and correct as of such date), disregarding for purposes such purpose in the case of this clause (aB) any limitations or qualifications as to “materiality”, “Material Adverse Effect”, “material” or similar materiality qualification set forth therein; and
(ii) any breach of (A) any covenant or agreement of Seller or any of its Subsidiaries contained in this Agreement requiring performance at or prior to Closing or (B) any covenant or agreement of Seller or any of its Subsidiaries contained in this Agreement requiring performance after Closing; and
(iii) any Excluded Liability. provided, however, that this Section 10.01 shall not provide for any indemnification arising out of or relating to Taxes (which are the subject of Section 10.03).
(b) Notwithstanding the foregoing, Seller shall not be required to indemnify any Purchaser Indemnitee and Seller shall not have any liability:
(i) under Section 10.01(a)(i), each schedule unless the aggregate of all Losses for which Seller would be liable, but for this clause (i), exceeds on a cumulative basis an amount equal to $4,500,000, and exhibit then only to the extent of any such excess; provided that this Agreement clause (i) shall be deemed not apply to any claim for indemnification to the extent arising out of a representation breach or inaccuracy of the representations set forth in Sections 4.01 (Organization, Standing and warrantyAuthority; Execution and Delivery; Enforceability), 4.03 (Shares) and 12.09 (Fees) (such representations, the “Seller Fundamental Representations”);
(bii) under Section 10.01(a)(i) for any failure by individual item (or series of items arising out of substantially similar facts and circumstances) where the Loss relating thereto is less than $50,000 and such items shall not be aggregated for purposes of the foregoing clause (i) of this Section 10.01(b); provided that this clause (ii) shall not apply to any claim for indemnification to the extent arising out of a breach or inaccuracy of the Seller to perform or comply with any agreement made by it under this AgreementFundamental Representations;
(ciii) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to (A) under Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf10.01(a)(i) in connection with any excess of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial CodeEscrow Amount; provided, however, that this clause (iii)(A) shall not apply to any claim for indemnification to the extent arising out of a breach of the Seller Fundamental Representations and (B) under Section 10.01(a)(i) (including to the extent arising out of a breach of the Seller Fundamental Representations) in excess of $410,000,000; and
(iv) under Section 10.01(a)(i) for any Losses arising out of a breach of the representations and warranties contained in Section 4.16, to the extent such Losses (A) are incurred by Purchaser for any Owned Property or Leased Property and exceed the minimum costs reasonably necessary to comply with applicable Environmental Laws, (B) arise at any Owned Property or Leased Property as a result of any site closure, cessation of operations, or change in site use to any use substantially dissimilar to the use of such real property at the Closing (such as, for example, from industrial to commercial or residential use), in each case by or on behalf of Purchaser or any person acquiring such real property from Purchaser or the Company or any Company Subsidiary after the Closing, or (C) arise as a result of any environmental investigation, testing or sampling at, on or under any Owned Property or Leased Property after the Closing by or on behalf of Purchaser or any person acquiring such real property from Purchaser or the Company or any Company Subsidiary after the Closing, except to the extent undertaken (i) Seller shall have no pursuant to any obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andunder any consent decree, in such event, for the full amount of such Damages, consent order or other specific requirement by or with any Governmental Entity; (ii) Seller' aggregate liability for Damages shall in no event exceed to respond to an imminent and substantial endangerment to the Purchase Consideration, and environment or human health; (iii) Seller shall have no obligation in connection with any requirement arising out of the decommissioning at the Kansas City, Missouri facility of the existing or any previous Environmental Permit issued by the Nuclear Regulatory Commission or any predecessor; or (iv) as required under any Environmental Law in connection with any repair or maintenance activity reasonably undertaken in connection with the operation of the Business, or any expansion of the physical facilities of the Business (provided that with respect to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after such expansion, any such investigation, testing or sampling is undertaken in consultation with, and subject to the Closing Dateapproval of, Seller, such approval not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Samples: Stock Purchase Agreement (Catalent Pharma Solutions, Inc.)
Indemnification by Seller. (a) The Seller shall will indemnify and hold the Buyer harmless Purchaser from and shall reimburse Purchaser for against any and all damage, loss, liabilitycost, claimdeficiency, damageassessment, liability or other expense (including reasonable attorneys fees, costs of court and litigation expenses, if any) suffered, incurred or paid by the Buyer as a result of:
(1) The untruth, inaccuracy, material breach or material violation of any representation, warranty, covenant or other obligation of the Seller set forth in or made in connection with this Agreement;
(2) The assertion against the Buyer or the Company of any material liability or obligation of the Company or of any claim relating to the operation of the Company's business, prior to the Closing Date, whether absolute or contingent, matured or unmatured, known or unknown as of the Closing Date (including, without limitation, costs customer claims or disputes but excluding repairs of investigation an incidental or customary nature, such as, but not limited to regrading surfaces and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:snaking out septic system lines); or
(a3) any inaccuracy in any The enforcement of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant Buyer's right to indemnification under this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);.
(b) The Buyer shall give written notice to the Seller of any failure claim, action, suit or proceeding relating to the indemnity herein provided by Seller not later than ten (10) days after Buyer has received notice thereof. Seller shall have the right, at his option, to perform compromise or comply with defend, at his own expense and by his own counsel (which counsel shall be reasonably satisfactory to Buyer), any agreement made by it under this Agreement;such action, suit or proceeding. Buyer and Seller agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto.
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf The Stock Consideration shall constitute security for Seller's indemnification. The Stock Consideration shall be reduced up to a total of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
two million dollars (d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf$2,000,000.000) in connection with any then current value of stock, by the transactions contemplated herein; and
(e) aggregate amount of Buyer's loss caused by Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; providedmaterial breach of any representation warranty, howevercovenant or other obligation hereunder, provided that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.amount
Appears in 1 contract
Indemnification by Seller. (a) Following the Closing until the applicable survival dates provided in Section 6.1(a) (but subject to the proviso set forth therein), Seller shall indemnify and indemnify, defend, hold harmless Purchaser and shall reimburse Purchaser for any lossBuyer and its Affiliates and their respective successors and permitted assigns, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value in their capacity as such (collectively, "Damages") arising the “Buyer Indemnified Parties”), for, from and against all Losses imposed on, incurred or suffered by or asserted against any Buyer Indemnified Party in connection withwith or arising out of:
(ai) the failure of any inaccuracy in Seller Representation (other than any Seller Fundamental Representation), as qualified by the Seller Disclosure Letter, to be true and accurate as of the representations Effective Date (or, in the case of any representation and warranties warranty that expressly speaks as of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreementa different date, or any actionssuch date), omissions or state of facts inconsistent with any such representation or warranty (it being understood that for purposes of this clause Section 6.2(a)(i) any qualifications relating to materiality (a), each schedule such as the terms “material” and exhibit to this Agreement “Material Adverse Effect”) set forth in such Seller Representation shall be deemed a representation disregarded for purposes of determining whether such Seller Representation was not true and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf accurate as well as the amount of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial CodeLosses; provided, however, that any qualifications relating to materiality shall not be disregarded for purposes of determining whether the Seller Representations set forth in Section 3.4(b) and Section 3.5(ix) were not true and accurate;
(ii) the failure of any Seller Fundamental Representation, as qualified by the Seller Disclosure Letter, to be true and accurate as of the Effective Date (or, in the case of any representation and warranty that expressly speaks as of a different date, such date), it being understood that for purposes of this Section 6.2(a)(ii) any qualifications relating to materiality (such as the terms “material” and “Material Adverse Effect”) set forth in such Seller Fundamental Representation shall be disregarded for purposes of determining whether such Seller Fundamental Representation was not true and accurate as well as the amount of such Losses;
(iii) the breach or failure of Seller to fully perform any covenant, agreement or obligation of Seller set forth in this Agreement;
(iv) any Excluded Assets;
(v) any Excluded Liabilities; or
(vi) any failure to collect in full any amount of Closing Accounts Receivable.
(b) Seller shall not have any liability pursuant to this Article VI in respect of any Losses of the type described in Section 6.2(a)(i) (i) Seller shall have no obligation to indemnify Purchaser for Damages any single claim or related series of claims involving less than $[REDACTED]in the aggregate (the “Per Claim Amount”) and (ii) unless and until the aggregate Damages exceed amount of such Losses exceeds $20,000 and[REDACTED] (the “Basket Amount”), in which event Seller shall be liable for all such eventLosses, including the Basket Amount.
(c) Notwithstanding any provision to the contrary contained in this Article VI, except for Losses in connection with Taxes that are Excluded Liabilities, the amount of Losses for which Seller shall be liable at any time pursuant to this Article VI in respect of all claims that are not Third-Party Claims shall be limited to the aggregate amount of (i) Monthly Future Payments paid to Seller as of such time, plus (ii) [REDACTED], plus (iii) the Post-Closing Payment, if any, paid to Seller; provided, that this Section 6.2(c) shall not prevent Buyer from recovering the full amount of such DamagesLosses pursuant to Buyer’s offset right as set forth in Section 6.6(b).
(d) Notwithstanding any provision to the contrary contained in this Article VI (including, (ii) Seller' for the avoidance of doubt, Section 6.2(c)), except for Losses in connection with Taxes that are Excluded Liabilities, the maximum amount of aggregate liability Losses for Damages shall in no event exceed the Purchase Consideration, and (iii) which Seller shall have no obligation be liable pursuant to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four 6.2(a)(i) shall be $[REDACTED] (24) months after the Closing Date“Cap Amount”).
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify Buyer and hold harmless Purchaser its Affiliates and their respective officers, directors, employees, agents, successors and assigns (the “Buyer Indemnified Parties”) against, and shall reimburse Purchaser for hold them harmless from, any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising Loss to the extent such Loss arises from or in connection withwith the following:
(ai) any inaccuracy misrepresentation or incorrectness in or breach by Seller of any representation or warranty made by it contained in this Agreement or the Seller Closing Certificate;
(ii) any non-fulfillment or breach by Seller of any of its covenants or agreements contained in this Agreement;
(iii) any Excluded Assets, including any Excluded Intellectual Property; or
(iv) any Retained Liabilities.
(b) Buyer acknowledges and agrees that the representations indemnification provided in this Section 13.2 shall be Buyer’s sole and warranties exclusive remedy for all Losses related to or arising, at law, under any statute or in equity, or otherwise, out of this Agreement (other than claims of, or causes of action arising from (x) fraud or willful misconduct, or (y) breach of Section 10.1 or Section 10.3) and, in furtherance thereof, Buyer waives, from and after the Closing, to the fullest extent permitted under applicable Governmental Rules, any and all rights, claims, actions or causes of action (other than claims of, or causes of action arising from (A) fraud or willful misconduct or (B) breach of Section 10.1 or Section 10.3) it may have against Seller or any of Seller’s Affiliates relating to the subject matter of this Agreement, other than the remedies provided in this Section 13.2; provided, however, that Buyer shall be entitled to seek temporary or permanent injunctive relief in order to enforce its rights hereunder. Subject to Section 8.5, in no event shall Buyer make a claim for breach of any particular representation, warranty or covenant made by Seller in this Agreement or in any certificate delivered by the Seller pursuant to this AgreementClosing Certificate if Buyer had Knowledge, or any actionsincluding through the Disclosure Schedule, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any breach as of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Agreement Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Indemnification by Seller. Subject to the provisions of this Section 11 and Section 12.1, Seller shall indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser its Affiliates, successors and permitted assigns, and their respective officers, directors, managers, shareholders, partners, employees, agents, representatives, managers and members (collectively, the “Buyer Indemnified Parties”) for the amount of any and all damage, loss, liability, claim, damageliability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, expense suit or proceeding) (collectively, “Loss”) incurred or suffered by Buyer or any of the Buyer Indemnified Parties arising out of, resulting from, or related to:
(a) any breach of any representation or warranty of Seller contained in this Agreement;
(b) any breach of a covenant or agreement made or to be performed by Seller pursuant to this Agreement or any Seller Transaction Document;
(c) any Excluded Liability, other than with respect to Taxes, which are covered by Section 11.1(d) below;
(d) any Taxes of the Company, to the extent allocable to a taxable period (or portion thereof) ending on or prior to the Closing Date, including, without limitation, any failure by the Company to pay such Taxes when due;
(e) any Claim brought by or on behalf of any present or former stockholder of the Company or Sunset Brands, Inc. (including, without limitation, costs any derivative action), challenging the validity of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby;
(f) any product manufactured or shipped by, or any actionsservices provided by, omissions the Company, in whole or state of facts inconsistent in part, prior to the Closing Date; and
(g) any noncompliance with any such representation bulk sale laws or warranty (fraudulent transfer law in respect of the transactions contemplated by this Agreement. For the avoidance of doubt, no liability or expense included in Current Liabilities in the calculation of Final Working Capital shall constitute a Loss for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.11.1
Appears in 1 contract
Samples: Asset Purchase Agreement (Ibf Vi Guaranteed Income Fund)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify indemnify, defend and hold harmless Purchaser Buyer, its Affiliates and shall reimburse Purchaser for their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any lossand all Losses of every kind, liabilitynature or description asserted against, claimor sustained, damageincurred, expense (includingsuffered or accrued directly or indirectly by, without limitationsuch Buyer Indemnified Person that arise out of, costs of investigation and defense and reasonable attorney's fees) relate to or diminution of value (collectively, "Damages") arising result from or in connection withas a consequence of any of the following:
(ai) the breach or inaccuracy of any inaccuracy representation or warranty of Seller contained in this Agreement, any of the Related Agreement or any exhibit or certificate delivered hereunder, provided, that for purposes hereof, such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to “materiality” (including the word “material”) or any similar limitations or qualifications;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any certificate delivered by Seller pursuant Related Agreement;
(iii) any Excluded Liability; and
(iv) any Taxes of any kind relating to this Agreementor arising in connection with the transfer of the Acquired Assets to Buyer, including any Taxes payable under any “bulk sales law” or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);other similar Laws.
(b) Subject to the other terms and conditions of this Article VII, including the Cap and Basket, any failure by Seller Losses that a Buyer Indemnified Person is entitled to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller recover pursuant to Section 7.2 herein;
(d7.2(a)(i) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person shall be satisfied from the Escrow Amount, in accordance with Seller (or any person acting on its behalf) in connection with any the terms of the transactions contemplated herein; and
(eEscrow Agreement. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) Seller's failure to comply that are not satisfied in accordance with the "Bulk Sales Laws" under the Uniform Commercial Code; providedpreceding sentence shall be payable by Seller upon demand, however, that (i) Seller shall have no obligation by wire transfer of immediately available funds to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, an account designated in writing by such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateBuyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. Seller hereby agrees that from and after the Closing it shall indemnify indemnify, defend and hold harmless each Purchaser, their respective Affiliates, and their respective directors, officers, stockholders, partners, members, attorneys, accountants, agents, representatives and employees and their heirs, successors and permitted assigns, each in their capacity as such (the “Purchaser Indemnified Parties”) from, against and shall reimburse Purchaser for in respect of any lossDamages imposed on, liabilitysustained, claimincurred or suffered by, damageor asserted against, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties Purchaser Indemnified Parties, whether in respect of Third-Party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from, (i) any breach of any representation or warranty (ignoring, for purposes of this Section 7.1, any qualification as to materiality contained therein) made by Seller contained in this Agreement or in any certificate document delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any Agreement so long as notice thereof is delivered to Seller during the period such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damagessurvives, (ii) Seller' aggregate liability for Damages shall in no event exceed any Excluded Liability or any failure to timely discharge or fulfill any of the Purchase ConsiderationExcluded Liabilities, and (iii) any breach of a covenant or agreement of Seller shall have no obligation contained in this Agreement or any document delivered pursuant to indemnify Purchaser for this Agreement. Damages include any claims made and all claims, costs, losses, expenses, liabilities or other damages, including interest, penalties and reasonable attorneys’ fees and disbursements by Purchaser under reason of or otherwise arising out of any Excluded Liability or any breach by the other party of a representation, warranty or covenant contained in this Section 7.1 after twenty four Agreement (24) months after the Closing Datecollectively “Damages”).
Appears in 1 contract
Indemnification by Seller. (a) Seller shall agrees, subject to the other terms and conditions of this Article IX (and, with respect to Taxes, Article VII), to indemnify and defend Purchaser and its Affiliates, and their respective officers, directors, employees, agents, successors and assigns (each, a "Purchaser Indemnified Party") against and hold them harmless from all Losses incurred by them or threatened against them (with respect to any threatened Loss, so long as same remains only a threatened Loss, it is understood and agreed that (i) the indemnification and hold harmless Purchaser obligations shall apply only for actually incurred out-of-pocket expenses and (ii) the defense obligations shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages"apply) arising from out of, relating to or otherwise consisting of (i) the breach of any representation or warranty of Seller or any Seller Affiliate made in connection with:
this Agreement (a) any inaccuracy in any and, for all purposes of the this Article IX, all representations and warranties of Seller made in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation made as of the date of this Agreement and warranty);
shall be repeated as of the Closing Date (bexcept with respect to the next to last sentence of Section 3.09) without giving effect to any failure by Seller to perform disclosures in any officers certificate or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing otherwise or any action taken or omitted by or on behalf other knowledge of Seller, except for Purchaser) and/or in any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such DamagesTransaction Agreement, (ii) Seller' aggregate liability for Damages shall the breach of any covenant or agreement of Centerpulse, Seller and/or any Seller Affiliate in no event exceed the Purchase Considerationthis Agreement and/or in any Transaction Agreement, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims Indemnifiable Liabilities; (iv) any Excluded Liabilities; and (v) any Product Liabilities, including Actions made by Purchaser under this Section 7.1 after twenty four (24) months or brought before or after the Closing Date with respect to products, including components, sold to any Person (including any distributor) on or prior to the Closing Date. Notwithstanding anything in this Article IX to the contrary, no claim may be asserted against Seller or Centerpulse pursuant to Section 9.03(a)(i) unless written notice of such claim is received by Seller or Centerpulse describing in reasonable detail the basis for the claim on or prior to the date on which the representation or warranty on which such claim is based ceases to survive as set forth in Section 9.01.
Appears in 1 contract
Indemnification by Seller. Seller shall agrees, subject to the other terms, conditions and limitations of this Agreement (including the provisions of ARTICLE 11 hereof), to indemnify Buyer and any Buyer Indemnitee against, and to hold Buyer and each Buyer Indemnitee harmless Purchaser and shall reimburse Purchaser for any lossfrom, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") all Loss arising from or in connection without of:
(a) any inaccuracy in breach of any of the representations and warranties representation or warranty of Seller contained in ARTICLE 4 of this Agreement or in any certificate delivered by Seller pursuant to this Agreement, to be true and correct as of the Closing or the breach or violation of any actions, omissions or state covenant of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)Seller made herein;
(b) any failure by Seller to perform of the Excluded Assets or comply with any agreement made by it under this Agreementof the Excluded Liabilities;
(c) the Purchased Assets at any time or times on or prior to the Closing (including without limitation any and all Taxes arising out of, or payable with respect to, Seller’s business operations through the Closing that could give rise to an Encumbrance upon the Purchased Assets or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf otherwise be enforceable against a transferee of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinthe Purchased Assets);
(d) any failure of Seller to pay the Transaction Taxes;
(e) any demand, claim, debt, suit, cause of action, arbitration or other proceeding (including, but not limited to, a warranty claim, a product liability claim or any other claim) that is made or asserted by any person for brokerage or finder's fees or commissions or similar payments based upon third party that relates to any agreement or understanding alleged Purchased Asset and that arose prior to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated hereinClosing; and
(ef) any demand, claim, debt, suit, cause of action or proceeding made or asserted by a stockholder, creditor, receiver, or trustee in bankruptcy of Seller's failure , or of the property or assets of either, asserting that the transfer of the Purchased Assets to comply with Buyer hereunder constitutes a fraudulent conveyance, fraudulent transfer or a preference under any applicable state or federal law, including but not limited to the "Bulk Sales Laws" under the Uniform Commercial United States Bankruptcy Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 1 contract
Indemnification by Seller. From and after the First Closing Date, and regardless of any investigation made at any time by or on behalf of Buyer or any information Buyer may have, Seller shall defend, indemnify and hold harmless Purchaser Buyer, its affiliates, partners, officers, directors, employees, agents, and shall reimburse Purchaser for representatives, and any lossthird party claiming by or through any of them, liabilityas the case may be, claim, damage, expense (including, without limitation, costs from and against any and all Losses arising out of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection withresulting from:
(a) 9.1.1. any inaccuracy in any of the representations and warranties of made by Seller in this Agreement or in any certificate delivered Transaction Document not being true and accurate when made or when required by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall or such Transaction Document to be deemed a representation true and warranty)accurate;
(b) 9.1.2. any failure by Seller to perform any of its material covenants, agreements, or comply with obligations in this Agreement or in any agreement made by it under this AgreementTransaction Document;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf 9.1.3. all liabilities and obligations of Seller, except for any and all claims for which Purchaser is required and demands made in respect thereof, whether or not known or asserted at or prior to indemnify Seller pursuant to Section 7.2 hereinthe relevant Closing Date (other than the Assumed Obligations and Liabilities);
(d) 9.1.4. the operation of the MMDS Systems prior to the relevant Closing Date;
9.1.5. any liabilities relating to Seller's employees asserted under any Legal Requirement or otherwise pertaining to any labor or employment matter arising out of actions occurring prior to the relevant Closing Date;
9.1.6. all obligations and liabilities arising out of or relating to the Excluded Assets; and
9.1.7. any liabilities arising under any bulk sales laws applicable to the transactions contemplated hereby. If, by reason of the claim by of any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged Person relating to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure matters to comply with which Buyer is entitled to such indemnification, a Lien is placed or made upon any of the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andproperties or assets owned or used by Buyer or any other indemnitee hereunder, in such event, for the full amount addition to any indemnity obligation of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 Article, if the Lien is not released within 30 days after twenty four (24) months after Seller is made aware of the Closing DateLien, Seller, if legally possible, shall furnish a bond sufficient to obtain the prompt release thereof within five days from receipt of notice relating thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nucentrix Broadband Networks Inc)
Indemnification by Seller. Seller shall indemnify agrees to indemnify, defend and hold harmless Purchaser Buyer from and shall against, and to reimburse Purchaser for Buyer with respect to, any lossand all demands, claims, actions or causes of action, assessments, cost, expense (including reasonable attorneys' fees and court costs), damage, liability, claimloss or deficiency incurred by Buyer, damageas finally determined by any court proceeding or an arbitrator, expense (including, without limitation, costs by reason of investigation and defense and reasonable attorney's fees) or diminution arising out of value (collectively, "Damages") arising from or in connection withwith any:
(a) 7.1.1 Breach of any inaccuracy in any of the representations and warranties covenant, representation or warranty of Seller in this Agreement contained herein or in any certificate delivered by Seller to Buyer pursuant to this Agreement, or . All statements of fact contained in any actions, omissions or state of facts inconsistent with any such representation or warranty written attachment (for purposes of this clause (aincluding financial statements), each schedule and exhibit deed, certificate, Schedule or other document delivered to Buyer by Seller pursuant to this Agreement shall be deemed a representation representations and warranty);warranties of Seller pursuant to this Agreement.
(b) any failure by 7.1.2 Failure of Seller to perform or comply observe any term, provision, covenant, agreement or condition contained herein.
7.1.3 Any income tax liability (including penalties and interest) that may be assessed against Xxxxx Oil, any other transferee, or Buyer with respect to the operations of Xxxxx Oil for all periods ending on or prior to the First Closing.
7.1.4 Any and all awards and/or judgments to which Buyer or Xxxxx Oil (after the First Closing) may become subject under the Securities Act of 1933, as amended ("1933 Act"), the Securities Exchange Act of 1934, as amended ("1934 Act"), or any other federal or state statute, at common law or otherwise, insofar as said liabilities, claims and lawsuits (including awards and/or judgments) arise out of or are in connection with any agreement of Xxxxx Oil's public filings made prior to the First Closing or a breach of this Agreement, other than any liability that arises out of an untrue statement or omission made in reliance on information provided by Buyer. All covenants, agreements, representations and warranties made by it under Seller pursuant to this Agreement;
(c) Agreement or in connection with Buyer's purchase of the Shares shall survive the First and Second Closings and remain effective regardless of any operations or business conducted, commitment made, service rendered or condition existing or investigations at any action taken or omitted time made by or on behalf of Seller, except for Buyer or of any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to information Buyer may have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Daterespect thereof.
Appears in 1 contract
Indemnification by Seller. Seller shall hereby covenants and agrees that, to the fullest extent permitted by Legal Requirement, it will defend, indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for any lossits Related Persons and Representatives, liabilityand their respective officers, claimdirectors, damagemembers, expense (includingmanagers, without limitationemployees, costs agents, and Representatives, and all successors and assigns of investigation and defense and reasonable attorney's fees) or diminution of value the foregoing (collectively, "Damages") the “Buyer Indemnified Persons”), for, from and against any Adverse Consequences, arising from or in connection with:
: (ai) any inaccuracy in Breach of any of the representations and warranties of representation, warranty, covenant, obligation or agreement made by Seller in this Agreement the Transaction Documents, the Schedules and Exhibits hereto, the certificates delivered hereunder, any transfer instrument, or in any certificate other certificate, document, writing or instrument delivered by Seller pursuant to this Agreementor otherwise in connection with the Transaction Documents; (ii) any Liability of Seller or its Related Persons; (iii) any Liability of Seller based on facts, events or circumstances occurring before the Effective Date, or any actions, omissions arising out of or state of facts inconsistent in connection with any such representation or warranty (for purposes of this clause (a), each schedule the ownership and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf operation of Seller, Seller’s assets, and the Seller Business prior to the Effective Date, whether or not such Liabilities or claims were known or unknown, absolute, accrued or contingent, on such date; (iv) any Liability of Seller to any Related Person (except for any claims for in connection with Permitted Encumbrances prior to the date on which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
Buyer has fully performed under the Transaction Documents); or (dv) any claim by any person Person for any brokerage or finder's fees or commissions ’s fee, commission or similar payments payment based upon any agreement or understanding made, or alleged to have been made made, by any such person Person with Seller (or any person acting on its behalf) in connection with this Agreement or any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.Contemplated Transactions
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Comstock Mining Inc.)
Indemnification by Seller. Seller shall indemnify and hold Purchaser harmless Purchaser from and shall reimburse Purchaser for any losslosses, liabilitydamages, claimdeficiencies, damageclaims, expense causes of action or expenses of any nature (including, without limitation, costs of investigation and defense and including reasonable attorney's attorneys' fees) incurred by Purchaser before or diminution of value (collectively, "Damages") arising from or in connection withafter the Closing Date that:
(a) Result from any inaccuracy in any of the representations and warranties of material misrepresentation made by Seller in this Sale Agreement or in any schedule, written statement or certificate delivered furnished to Purchaser by Seller pursuant to this Sale Agreement, or any actions, omissions material breach or state violation of facts inconsistent with any such representation or warranty (for purposes of made by Seller in this clause (a)Sale Agreement; as to any representation or warranty qualified to Seller's knowledge, each schedule and exhibit to this Agreement Seller shall be deemed a representation and warranty)obligated to indemnify Purchaser as to any such matter regardless of whether Seller did or did not have knowledge of such matter;
(b) Result from the material breach of any failure covenant or promise of Seller contained in this Sale Agreement or in any schedule, written statement or certificate furnished by Seller pursuant to perform or comply with any agreement made by it under this Sale Agreement;
(c) Result from errors of improper servicing by Seller in servicing any operations of the Mortgages prior to the Transfer Date (including, without limiting this clause (c), any failure by Seller to determine and apply correctly an adjustable interest rate on any Mortgage) or business conducted, commitment made, service rendered or condition litigation existing or pending on the Closing Date involving the Servicing of any action taken of the Mortgages or omitted by or on behalf litigation involving the servicing of Seller, except for any claims for which Purchaser is required Mortgage arising out of matters occurring prior to indemnify Seller pursuant to Section 7.2 hereinthe Transfer Date;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any Arise out of the transactions contemplated hereinlitigation currently pending against Seller as described on Exhibit H hereto or out of such servicer termination events as Seller has disclosed in the Offering Memorandum; andor
(e) Result from Seller's failure to comply with any Servicing Agreement or applicable rules, regulations or guidelines of a Master Servicer, Investor or Agency with respect to the "Bulk Sales Laws" under Servicing, including the Uniform Commercial Code; provided, however, that (i) dispute between Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount and The First National Bank of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateBoston.
Appears in 1 contract
Samples: Bulk Servicing Purchase Agreement (Mego Mortgage Corp)
Indemnification by Seller. Upon the terms and subject to the conditions set forth in Section 4.3 hereof and this Section 4.1, Seller shall agrees to indemnify and hold Buyer harmless Purchaser against, and shall will reimburse Purchaser for Buyer on demand for, any payment, loss, liability, claim, damage, cost or expense (including, without limitation, including reasonable attorney's fees and reasonable costs of investigation and defense and reasonable attorney's feesincurred in defending against such payment, loss, cost or expense or claim therefor) made or diminution of value (collectively, "Damages") arising from incurred by or asserted against Buyer at any time after the Closing Date in connection withrespect of:
4.1.1 any and all liabilities or obligations of Seller, or claims against or imposed on Buyer, of any nature (awhether accrued, absolute, contingent or otherwise and whether a contractual, tax or other type of liability, obligation or claim) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered not assumed by Seller Buyer pursuant to this Agreement;
4.1.2 any and all damage or deficiency resulting from any omission, misrepresentation, breach of warranty, or nonfulfillment of any actionsterm, omissions provision, covenant or state agreement on the part of facts inconsistent with Seller contained in this Agreement, or from any such representation misrepresentation in, or warranty (for purposes of this clause (a)omission from, each schedule and exhibit any certificate or other instrument furnished or to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller furnished to perform or comply with any agreement made by it under Buyer pursuant to this Agreement;
(c) 4.1.3 any operations and all liabilities, obligations, claims, damage or business conducted, commitment made, service rendered deficiency arising out of or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required related to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under bulk transfer provisions in effect in the Uniform Commercial Codestate or states in which the Assets are located; providedand
4.1.4 to the extent, howeverif any, that (i) not covered by the foregoing, any claim which may now exist or may heretofore arise out of any agreement, written or oral, or any negotiation or discussion heretofore occurring by any officer, director, agent or employee of Seller shall have no obligation with any representative of ErgoBilt, Inc. relating to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount potential sale of such Damages, (ii) any rights or products owned by Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 1 contract
Indemnification by Seller. It is understood and agreed that LBI Holdings and Buyer do not assume and will not be obligated to pay any liability of Seller shall indemnify under the terms of this Agreement or otherwise and will not be obligated to perform any obligations of Seller of any kind or manner, except in connection with the Assumed Contracts and with respect thereto only to the extent such obligations arise subsequent to the consummation of the transaction contemplated hereby on the Closing Date. Seller hereby agrees to indemnify, defend and hold harmless Purchaser LBI Holdings and shall reimburse Purchaser Buyer, their successors and assigns, for any lossa period of twelve (12) months following the consummation of the purchase and sale transaction contemplated hereby on the Closing Date, liabilityfrom and against:
10.1.1 Any and all Damages, claimoccasioned by, damagearising out of or resulting from the operation of either Station prior to the Closing Date, expense (including, without limitationbut not limited to, costs any and all claims, liabilities and obligations arising or required to be performed prior to the Closing Date under any of investigation the Assumed Contracts or otherwise with respect to Seller's ownership and defense operation of either Station prior to the Closing Date; and
10.1.2 Any and reasonable attorney's fees) all Damages occasioned by, arising out of or diminution resulting from any material misrepresentation, material breach of value (collectivelywarranty or covenant, "Damages") arising or material default or material nonfulfillment of any agreement on the part of Seller under this Agreement, or from any material misrepresentation in or material breach of any certificate, agreement, appendix, Schedule, or other instrument furnished to LBI Holdings or Buyer pursuant to this Agreement or in connection with:
with the transaction contemplated hereby (a) it being understood and agreed by the Parties hereto that for purposes of this Section 10.1.2, that for purposes of determining such breach of Seller's representations, warranties and covenants, all knowledge qualifications in the representations and warranties of Seller contained in Section 4.3.3 shall be disregarded and such representation or warranty shall not be qualified in any inaccuracy in respect by such knowledge qualification); provided further, however, that if LBI Holdings or Buyer or any of their respective agents discovers facts from a source other than the Seller or any of its agents or representatives prior to the Closing Date and such facts constitute a breach of any of the representations and warranties hereof on the part of Seller and if, in this Agreement or in any certificate delivered by Seller pursuant spite of the existence of such breach, Buyer elects to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure consummate the transactions contemplated hereby without an additional written agreement by Seller to perform or comply indemnify Buyer with any agreement made by it under this Agreement;
(c) any operations or business conductedrespect to such breach, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required then LBI Holdings and Buyer shall not have a right to indemnify Seller pursuant indemnification with respect to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount breach of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed representation and warranty to the Purchase Consideration, and (iii) Seller shall have no obligation extent that the severity of such breach is known to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.LBI Holdings or Buyer prior to Closing
Appears in 1 contract
Indemnification by Seller. After the Closing and subject to the limitations set forth in Section 9.4, Seller shall indemnify indemnify, defend and save and hold harmless Purchaser Buyer, Buyer’s Affiliates and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs each of investigation and defense and reasonable attorney's fees) or diminution of value their respective Representatives (collectively, "Damages"the “Buyer Indemnified Parties”) from and against any Losses which any Buyer Indemnified Party may sustain, or to which any Buyer Indemnified Party may be subjected, arising from out of or in connection with:
relating to (ai) any inaccuracy inaccuracy, misrepresentation or breach of any representation or warranty made by Seller or the Company in this Agreement, any of Ancillary Document or any certificate delivered hereunder; (ii) any failure by Seller Parent, Seller or the representations and warranties of Company to duly perform or observe any term, provision, covenant, agreement or condition in this Agreement to be performed at or prior to the Closing, (iii) any failure by Seller Parent or Seller to duly perform or observe any term, provision, covenant, agreement or condition in this Agreement or in any certificate delivered by Ancillary Document on the part of Seller pursuant Parent or Seller to be performed after the Closing, (iv) any Pre-Closing Transaction Liabilities; (v) the Released Obligations; (vi) the current, former or future business, assets, Liabilities, operations or other activities of Seller Parent and its Affiliates (other than the Company and its Subsidiaries), including, for the avoidance of doubt, any Liabilities arising under Title IV of ERISA or (viii) the matters described in Schedule 9.2. For the purposes of this AgreementARTICLE 9, or any actionsall representations and warranties, omissions or state other than the representations and warranties in Section 3.2(u) (Absence of facts inconsistent with any such representation or warranty (Changes), shall be read both for purposes of this clause determining whether a misrepresentation or breach has occurred and for purposes of determining the amount of Losses without regard to any qualifications as to materiality or Material Adverse Effect (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is correlative term) contained in such representations and warranties; provided that no list required to indemnify Seller be set forth on a Disclosure Schedule pursuant to Section 7.2 herein;
3.2(o) (dIntellectual Property), Section 3.2(p) any claim by any person for brokerage (Material Contracts), Section 3.2(s) (Environmental Compliance) or finder's fees or commissions or similar payments based upon any agreement or understanding alleged Section 3.2(x) (Insurance) shall be determined to have been made by any such person with Seller (or any person acting on its behalf) be in connection with any breach as result of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Dateforegoing sentence.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the limitations set forth in this Agreement, Seller shall indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for any lossits Affiliates and their respective Representatives, liabilitystockholders, claimmembers, damage, expense (including, without limitation, costs of investigation successors and defense and reasonable attorney's fees) or diminution of value permitted assignees (collectively, "Damages"the “Buyer Indemnitees”) arising against and from any and all Losses which any Buyer Indemnitee may incur or in connection withsuffer at any time from and after the Closing to the extent such Losses arise out of or result from:
(ai) any breach of or inaccuracy in any of the representations and warranties representation or warranty of Seller contained in or made pursuant to this Agreement or in any certificate delivered by Seller pursuant to this an Ancillary Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full purposes of this Section 11.2(a)(i) in determining whether there has been a breach of any representation or warranty, and in calculating the amount of Losses resulting from any such Damagesbreach or inaccuracy, all qualifications in any representation or warranty referencing the terms “material,” “materiality,” or “Material Adverse Effect” shall be disregarded;
(ii) Seller' aggregate liability for Damages shall any breach of any covenant or agreement made by Seller or any Selling Company in no event exceed this Agreement or any Ancillary Agreement that survives the Purchase Consideration, and Closing;
(iii) Seller any of the Excluded Assets;
(iv) any of the Excluded Liabilities (other than with respect to Indemnified Taxes, which shall have no obligation to indemnify Purchaser be addressed in Section 10.1(a)); and
(v) the Schedule D-2 Excluded Liabilities (as defined in Schedule D). Notwithstanding that a claim for any claims made by Purchaser under Losses may fall into multiple categories of this Section 7.1 after twenty four 11.2, a Buyer Indemnitee may recover such Losses one time only. Where Loss is suffered by a Buyer Assignee, Buyer may direct Seller to pay (24or cause the payment from relevant Seller Affiliate) months after directly to the Closing DateBuyer Assignee.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Huntsman International LLC)
Indemnification by Seller. (a) Subject to the provisions of Sections 7.1(b) and 7.4 below, Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (its Affiliates including, without limitation, costs Company, and each of investigation their respective stockholders, officers, directors, employees and defense and reasonable attorney's fees) or diminution of value representatives (collectively, each a 21 "DamagesPurchaser Indemnitee") against, and hold each Purchaser Indemnitee harmless from, any and all loss, damage, liability, payment, and obligation, and all expenses, including without limitation reasonable legal fees, all calculated on a net after tax basis (collectively "Losses"), incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be imposed upon, such Purchaser Indemnitee after the Closing Date resulting from, related to or arising from or in connection with:
(a) out of any inaccuracy in in, or breach of, any of the representations and representations, warranties of or covenants made by Seller or Company in or pursuant to this Agreement or in any certificate agreement, document or instrument executed and delivered by Seller pursuant to this Agreement, hereto or any actions, omissions or state in connection with the Closing of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);the transactions contemplated hereunder.
(b) any failure by Each Purchaser Indemnitee shall promptly give written notice to Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim the assertion by any person for brokerage Person of any claim, action, suit or finder's fees or commissions or similar payments based upon any agreement or understanding alleged proceeding with respect to have been made by any such person with which Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure is obligated to comply with the "Bulk Sales Laws" under the Uniform Commercial Codeprovide indemnification hereunder; provided, however, that the rights of a Purchaser Indemnitee to be indemnified hereunder shall only be affected by the failure to give such notice if and to the extent such failure prejudices Seller in the defense of such third party claim. Amounts due with respect to Losses covered by this Section 7.1 shall be paid promptly after delivery of reasonably documented written notice of the amount of Losses incurred. Seller shall have the right, but not the obligation, to contest, defend or litigate, and to retain counsel of his choice in connection with, any claim, action, suit or proceeding by any third party alleged or asserted against a Purchaser Indemnitee that is subject to indemnification by Seller hereunder, and the cost and expense thereof shall be subject to the indemnification obligations of Seller hereunder; provided, that each Purchaser Indemnitee shall have the right and option to participate in, but not control, the defense of such action at its own expense; and provided, further, that, (i) if Seller shall have no obligation elects not to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in defend any such event, for the full amount of such Damages, action or (ii) if a Purchaser Indemnitee shall have defenses not available to Seller and if counsel to Purchaser shall advise in a written opinion that common representation is not appropriate, then, in each case, such Purchaser Indemnitee shall be entitled, at its option through counsel of its choice, reasonably approved by Seller' aggregate liability for Damages , such approval not to be unreasonably withheld, but at Seller's expense, to assume and control the defense of such action. Neither Seller, on the one hand, nor any Purchaser Indemnitee, on the other hand, shall in no event exceed be entitled to settle or compromise any such claim, action, suit or proceeding without the Purchase Considerationprior written consent of such Purchaser Indemnitee or the Seller as the case may be, which consent shall not be unreasonably withheld and provided further if Purchaser unreasonably refuses to approve any settlement of an action or proceeding which involves only the payment of money, and (iii) Seller the Purchaser Indemnitee's position in such an action or a proceeding is subsequently not sustained, such Purchaser Indemnitee shall be solely responsible for Losses in excess of those which would have no obligation been incurred had such claim been settled on the terms acceptable to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateSeller.
Appears in 1 contract
Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) For matters for which notice is provided during the applicable periods set out in Section 10.1(d) and except as further modified by other provisions of this Section 10.1, Seller will indemnify Buyer and hold it harmless against any Loss arising from, relating to or constituting (i) any breach or inaccuracy in any of the representations and warranties of Seller or the Company contained in this Agreement or in the Disclosure Schedule as of the Closing Date or in any closing certificate delivered by or on behalf of Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty ; (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(bii) any matter disclosed on Schedule 10.1; (iii) Seller’s failure by Seller to perform discharge any Pre-Closing Indebtedness; (iv) Seller’s failure to effectuate the cancellation or comply with any agreement made by it under this Agreement;
redemption of Company Warrants; (cv) any operations liability of the Company for Taxes incurred on or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Sellerprior to the Closing Date, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
Taxes covered by reserves or accruals on the Closing Date Balance Sheet; (dvi) any claim by a customer of the Company for a credit, discount or payment arising out of any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been sales made by the Company on or prior to the Closing Date; (vii) any such person with Seller (liability under the WARN Act or any person acting on its behalfsimilar state or local Law that may result from an “Employment Loss,” as defined by 29 U.S.C. 2101(a)(6), caused by any action of the Company prior to the Closing; (viii) in connection with any Plan established or maintained by the Company, but only to the extent that such Loss arises or is incurred prior to the Closing Date or the facts giving rise to such loss occurred prior to the Closing Date; (ix) any breach of any of the transactions contemplated hereinagreements of Seller contained in this Agreement or the Buyer Option Agreement; and
(ex) Seller's failure to comply with convey to Buyer good, valid and marketable title to the "Bulk Sales Laws" under Shares, free and clear of all Encumbrances ; (xi) any former shareholder of the Uniform Commercial Code; provided, however, that (i) Seller Company or other Person shall have no obligation asserted any rights in the assets of the Company or with respect to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andownership of any equity interest in the Company; (xii) the inquiry or resulting action taken by the Department of Labor set forth on Schedule 4.16 hereto, in such event, for or (xiii) any Losses related to the full amount recharacterization or revaluation of Seller’s Personal Goodwill. All of such Damages, (ii) Seller' aggregate liability for Damages shall Losses set forth in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (2410.1(a) months after the Closing Dateare referred to as “Buyer Losses”.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the limitations set forth in this Article XI, Seller shall indemnify and hold harmless Purchaser Buyer, any Affiliate of Buyer or their respective current or future Representatives, controlling persons, successors and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value permitted assigns (collectively, "Damages"“Buyer Indemnitees”) harmless from and against and in respect of any and all actual losses, liabilities, damages, claims, suits, proceedings, judgments, settlements, and expenses, including, Excluded Consequential Damages (to the extent proven) and reasonable attorneys’ fees and expenses, incurred by any such Buyer Indemnitee (hereinafter “Buyer Losses”) to the extent arising out of or resulting from or in connection with:
(ai) any inaccuracy in breach by Seller of any of the representations and warranties of Seller contained in this Agreement or in any certificate delivered Ancillary Agreement, (ii) any breach by Seller pursuant to of any of its covenants or agreements in this Agreement, or (iii) the Excluded Liabilities and any actionsassertion against Buyer by any third party of any of the Excluded Liabilities, omissions or state of facts inconsistent with any such representation or warranty and (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(biv) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's ’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made made, by any such person Person with Seller or any Affiliate thereof (or any person Person acting on its their behalf) in connection with any of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained herein, for purposes of this Section 11.2, all representations and warranties made by Seller in this Agreement or any other Transaction Document shall be read as if references and qualifications therein relating to materiality or Material Adverse Effect were disregarded.
(b) The foregoing obligation to indemnify Buyer Indemnitees set forth in Section 11.2(a) shall be subject to each of the following limitations:
(i) no indemnification for Buyer Losses asserted against Seller under Section 11.2(a)(i) shall be required until the cumulative amount of such Buyer Losses equals or exceeds $1,000,000 (the “Minimum Loss”), at which xxxx Xxxxxx shall be obligated to make all such indemnification payments; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' ’s aggregate liability to Buyer Indemnitees under Section 11.2(a)(i) for Buyer Losses shall not exceed $25,000,000 (the “Cap”), and Excluded Consequential Damages shall in no event exceed not comprise more than fifty percent (50%) of the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateCap.
Appears in 1 contract
Indemnification by Seller. (a) Seller shall indemnify against and hold harmless Purchaser Buyer, its Affiliates and shall reimburse Purchaser for any losstheir respective employees, liability, claim, damage, expense (including, without limitation, costs of investigation officers and defense and reasonable attorney's fees) or diminution of value directors (collectively, "Damages"the “Buyer Indemnified Parties”) arising harmless from, and agrees to promptly defend any Buyer Indemnified Party from and reimburse any Buyer Indemnified Party for, any and all Losses that such Buyer Indemnified Party may at any time suffer or incur, or become subject to, as a result of or in connection with:
(ai) any inaccuracy in failure of any of the representations and warranties representation or warranty of Seller (whether made in or pursuant to this Agreement or in any instrument or certificate delivered by the Seller at the Closing in accordance herewith) to be true when made and at and as of the Closing Date as if made at and as of such date (except that representations and warranties that by their terms speak as of the date of this Agreement or some other date need be true only as of such specified date), in each case determined without regard to any Material Adverse Effect qualification contained in any representation or warranty (other than Section 3.12(b)(i)) (each such misrepresentation and breach of warranty, or such failure of any representation or warranty to be true, a “Seller Warranty Breach”);
(ii) any failure by Seller to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and/or other instruments delivered by Seller pursuant to this Agreement;
(iii) the Excluded Assets;
(iv) the Excluded Liabilities, other than those set forth in Section 2.04(d)
(v) the Seller Environmental Liabilities; and
(vi) to the extent arising from the operation of the Stations before the Closing Date other than as a result of or any actions, omissions or state of facts inconsistent in connection with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);Assumed Liability.
(b) Notwithstanding any failure by other provision to the contrary, Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is shall not be required to indemnify Seller and hold harmless any Buyer Indemnified Party pursuant to Section 7.2 herein;
12.03(a)(i): (dA) any unless such Buyer Indemnified Party has asserted a claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged with respect to have been made by any such person with Seller matters within the applicable survival period set forth in Section 12.01 and (or any person acting on its behalfB) in connection with any until the aggregate amount of the transactions contemplated herein; and
(e) Seller's failure Buyer Indemnified Parties’ Losses resulting from Seller Warranty Breaches exceeds $150,000, and then only to comply with the "Bulk Sales Laws" under the Uniform Commercial Codeextent of such Losses in excess of such amount; provided, however, that (i) the cumulative indemnification obligation of Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages under this Section 12.03 and Section 9.01 shall in no event exceed $2.5 million.
(c) Parent, by its execution of this Agreement, hereby absolutely and unconditionally guarantees the Purchase Considerationfull performance by Seller of its obligations under Section 12.03(a), and (iii) Seller shall have no obligation subject to indemnify Purchaser for any claims made by Purchaser under this the limitations of Section 7.1 after twenty four (24) months after the Closing Date12.03(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Fisher Communications Inc)
Indemnification by Seller. Subject to the terms and conditions of this Agreement (and, with respect to Environmental Indemnifiable Losses, as defined in Section 7.3 below, subject to Article 7 hereof), Seller shall agrees to indemnify and hold Buyer, the Company and CEVCO harmless Purchaser from and shall reimburse Purchaser for against any lossand all liabilities, liabilityobligations, claimdamages, damagedeficiencies, expense losses, claims, actions, lawsuits, proceedings, judgments, demands, costs, penalties, and expenses (including, without limitation, costs of investigation and defense and including reasonable attorney's attorneys' fees) or diminution of value (collectively, "DamagesIndemnifiable Losses") suffered or incurred by Buyer and/or the Company and/or CEVCO and arising from or in connection withresulting from:
(a) any inaccuracy in breach of any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty of Seller contained in Section 2.1 hereof, (for purposes of this clause (a), each schedule except to the extent any such breach is waived by Buyer pursuant to Section 4.1 hereof and exhibit except to this Agreement shall be deemed a representation the extent Buyer had actual knowledge thereof prior to Closing and warrantyfailed to disclose such breach to Seller);
(b) any failure breach by Seller to perform of any covenant or comply with any agreement made by it under obligation of Seller contained in this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person Person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person Person with Seller (or any person Person acting on its behalf) in connection with any of the transactions contemplated hereinhereby;
(d) those items specifically listed on Schedule 6.1; andor
(e) Seller's failure any claim by (or by another Person on behalf of) any current or former employee of the Division or the CEV business for death, personal injury or related loss, expense, damage, liability or disability, incurred as the result of exposure to comply with asbestos or asbestos-containing material during the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount course of such Damages, employment in so far as the employee becomes aware of the injury within twenty (ii20) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Dateyears of Closing.
Appears in 1 contract
Indemnification by Seller. (a) Following the Closing, Seller shall indemnify and indemnify, hold harmless Purchaser and shall reimburse Purchaser for any lossBuyer and its Affiliates and their respective successors and permitted assigns, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value in their capacity as such (collectively, "Damages"the “Buyer Indemnified Parties”), for, from and against all Losses actually incurred or suffered by the Buyer Indemnified Parties resulting from, arising out of or relating to any Indemnified Taxes. Seller’s obligation to indemnify the Buyer Indemnified Parties for any Indemnified Taxes shall not exist if and to the extent (i) arising from or in connection with:
(a) any inaccuracy in any of such Taxes are otherwise borne by the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller Buyer Indemnified Parties pursuant to this Agreement, (ii) such Taxes are imposed on or with respect to any actions, omissions or state Transferred Subsidiaries as a result of facts inconsistent with a breach by Buyer of any such representation or warranty (for purposes provision of this clause Agreement, (a)iii) such Taxes arise solely as a result of any actions taken by Buyer or its Affiliates (including, each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(bafter the Closing, the Transferred Subsidiaries) any failure on the Closing Date but after the time of Closing that are outside of the ordinary course of business or not contemplated by Seller to perform or comply with any agreement made by it under this Agreement;
, (civ) any operations such Taxes can or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim could have been offset by any person for brokerage Tax losses, Tax credits or finder's fees other Tax attributes attributable to any Pre-Closing Period (including as a result of subsequent Tax audits); provided, that any other direct or commissions indirect use or similar payments based upon any agreement or understanding alleged to have been made reduction of such Tax attributes by any such person with Seller (or any person acting on its behalf) in connection with Buyer or, after the Closing Date, by any of the transactions contemplated herein; and
(e) Seller's failure to comply with Transferred Subsidiaries or their Subsidiaries shall be disregarded in determining the "Bulk Sales Laws" under existence and the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such DamagesTax attributes, (iiv) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationsuch Taxes are recoverable under Section 7.5(b), and or (iiivi) Seller shall have no obligation to indemnify Purchaser for any claims made such Taxes are caused by Purchaser under this Section 7.1 after twenty four (24) months a change of Law published after the Closing Date.
(b) Following the Closing, Seller shall indemnify, hold harmless and reimburse the Buyer Indemnified Parties, for, from and against all Losses actually incurred or suffered by the Buyer Indemnified Parties resulting from, arising out of or relating to (i) the breach of any Post-Closing Covenant of Seller or (ii) any Excluded Liabilities.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Indemnification by Seller. (a) From and after the Closing, Seller shall agrees to, jointly and severally, indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for its officers, directors, employees, Affiliates, agents and representatives, and each of the heirs, executors, successors and assigns of any loss, liability, claim, damage, expense of the foregoing (including, without limitation, costs of investigation each a “Buyer Indemnitee”) from and defense against any and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising all Losses incurred by any Buyer Indemnitee resulting from or in connection witharising out of, directly or indirectly:
(ai) any breach of any warranty or the inaccuracy in of any of the representations and warranties representation of Seller contained in this Agreement or in any the certificate delivered by Seller pursuant to this AgreementSection 9.6; provided, that, qualifications as to materiality, Material Adverse Effect or any actions, omissions other qualifiers of similar import contained in such representations and warranties shall not be given effect for determining whether a breach of such representations and warranties has occurred or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)calculating any Losses;
(bii) any breach by Seller of, or failure by Seller to perform perform, any of its covenants or comply with any agreement made by it under obligations contained in this AgreementAgreement that are required to be performed at or prior to the Closing;
(ciii) any operations breach by Seller of, or business conductedfailure by Seller to perform, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is its covenants and obligations contained in this Agreement that are required to indemnify Seller pursuant to Section 7.2 hereinbe performed after the Closing;
(div) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated hereinExcluded Liabilities; and
(ev) Fraud by Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation be required to indemnify Purchaser for Damages until and hold harmless under Section 11.1(a)(i) with respect to Losses incurred by any Buyer Indemnitee only to the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.extent that:
Appears in 1 contract
Indemnification by Seller. Subject to Section 8.4, Seller shall agrees to indemnify Purchaser, its Affiliates and its officers, directors, employees, successors and permitted assigns (the “Purchaser Indemnified Parties”) after the Closing against and in respect of, and agrees to hold the Purchaser Indemnified Parties harmless from, any and all Losses imposed on, incurred by or suffered by any Purchaser and shall reimburse Purchaser for Indemnified Party arising out of or resulting from any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection withthe following:
(a) any breach of or any inaccuracy in any of the representations and warranties of representation or warranty made by Seller in this Agreement other than any breach of or inaccuracy in an Excluded Representation; provided, that Seller shall not have any liability under this Section 8.2(a) for any breach of or inaccuracy in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty unless a notice of the Purchaser Indemnified Party’s claim is given to Seller at any time in the future promptly following discovery of such breach; provided, that the failure of the Purchaser Indemnified Party to give such prompt written notice shall not relieve Seller of its obligations under this Article 8 except to the extent (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)if any) that Seller has been prejudiced thereby;
(b) any failure by breach of or any inaccuracy in any Excluded Representation; provided, that Seller to perform or comply with shall not have any agreement made by it liability under this Agreement;Section 8.2(b) for any breach of or inaccuracy in any representation or warranty unless a notice of the Purchaser Indemnified Party’s claim is given to Seller at any time in the future promptly following discovery of such breach; provided, that the failure of the Purchaser Indemnified Party to give such prompt written notice shall not relieve Seller of its obligations under this Article 8 except to the extent (if any) that Seller has been prejudiced thereby; or
(c) any operations breach of or business conducted, commitment made, service rendered failure by (excluding any breach or condition existing or any action taken or omitted inaccuracy covered by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(dSections 8.2(a) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalfand 8.2(b) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (iabove) Seller shall have no to perform any agreement, covenant, obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, or undertaking of Seller set out in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateAgreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Residential Capital, LLC)
Indemnification by Seller. Subject to the limitations of this Section 8, Seller shall indemnify indemnify, defend, and hold harmless Purchaser Buyer and shall reimburse Purchaser for each Acquired Company and their respective Representatives, stockholders, controlling persons and Affiliates (collectively, the "Indemnified Persons") against and in respect of any loss, liability, claim, damage, or expense (including, without limitation, including costs of investigation and defense and reasonable attorney's attorneys' fees) ), whether or diminution of value not involving a third-party claim (collectively, "Damages") arising from that any Acquired Company or in connection with:
Buyer shall incur or suffer, which arise, result from, or relate to, directly or indirectly, (ai) any inaccuracy in breach of any of the representations and warranties contained in Section 2 of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreementof Seller's Closing Documents, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(bii) any failure by Seller to perform any of its covenants or comply with agreements in this Agreement or in any schedule, certificate, exhibit, agreement made or other instrument furnished or to be furnished by it Seller or the Company under this Agreement;
, (c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(diii) any claim by any person Person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person Person with either Seller or any Acquired Company (or any person Person acting on its their behalf) in connection with any of the transactions contemplated herein; andContemplated Transactions, (iv) any Taxes of the Acquired Companies attributable to periods (or portions thereof) ending on or prior to the Closing Date to the extent such Taxes exceed any accrual for Taxes on the Closing Schedule or (v) any claim identified on Exhibit 8.2 hereof. Buyer and Seller agree that the absence of the phrase "diminution in value" in the definition of "Damages" shall not be dispositive of whether, or under what circumstances, diminution in value is an appropriate measure of damages. Notwithstanding the foregoing, Seller shall not be required to indemnify Buyer for any Damages relating to Taxes (other than for the matters set forth as item 1 in part 2.12.1 of the Schedule which shall be entirely the responsibility of Seller, and for which Seller shall provide indemnity hereunder) until the amount of such Damages exceeds the amount of tax benefit obtained by the Acquired Companies through the use of Acquired Company net operating losses (other than those relating to the restructuring provision, the long-term service award provision and the technical warranty provision in the audited statutory balance sheet of the Company as at December 31, 1999) as of the Closing Date.
(e) Seller's failure to comply with 8.2.1 The remedies provided for in this Section 8.2 shall constitute the "Bulk Sales Laws" under the Uniform Commercial Codeexclusive remedy of Buyer from and against any and all Damages described in Section 8.2; provided, however, that (i) Seller the foregoing shall have no obligation to indemnify Purchaser not in any way limit claims for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datefraud or specific performance or other equitable relief.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cherokee International Corp)
Indemnification by Seller. Seller shall indemnify hereby covenants and hold harmless agrees with Purchaser and shall reimburse Purchaser for that, regardless of any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) made at any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted time by or on behalf of SellerPurchaser or any information Purchaser may have and, except for regardless of the Closing hereunder, Seller shall, indemnify Purchaser and the directors, officers, employees and Affiliates of Purchaser, and each of their successors and assigns (collectively, the "Purchaser Indemnitees"), and hold them harmless from, against and in respect of any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim and all Losses suffered, incurred or sustained by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that them resulting from (i) any misrepresentation, breach of warranty or nonfulfillment of any agreement, covenant or obligation by Seller shall have no obligation to indemnify Purchaser for Damages until or the aggregate Damages exceed $20,000 and, Company made in such event, for the full amount of such Damagesthis Agreement (including without limitation any Exhibit or Schedule hereto and any certificate or instrument delivered in connection herewith), (ii) Seller' aggregate any Tax imposed upon or relating to the Company for any Pre- Closing Period in excess of the amount shown on the Closing Balance Sheet as a Liability or reserve for current Taxes not yet due and payable (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income and the accrual on the Closing Balance Sheet described in the last sentence of Section 2.2), but only if and to the extent that that such excess would have caused the Minimum Book Value of the Company to fall below (or further below) one million dollars ($1,000,000) if such liability for Damages shall in no event exceed had existed on the Purchase ConsiderationClosing Date, and (iii) (A) the presence, Release or threatened Release, of any Hazardous Materials existing as of or prior to the Closing Date at, from, in, to, on, or under any Site; (B) the transportation, treatment, storage, handling, or disposal or arrangement for transportation, treatment, storage, handling or disposal of any Hazardous Materials by or on behalf of Seller shall have no (in connection with the Business) or the Company, any predecessors of Seller (in connection with the Business) or the Company or any entities previously owned by the Company at or to any off-Site location prior to the Closing Date; (C) any violation of Environmental Law or any Environmental Permit by Seller (in connection with the Business) or the Company as of or prior to the Closing Date; or (D) any Environmental Claims relating to (1) the Business as conducted on or prior to the Closing Date; (2) any Contract executed by the Company on or prior to the Closing Date; (3) any express or implied warranty obligations with respect to products or services sold or otherwise provided by or on behalf of the Company on or prior to the Closing Date; or (4) any liability or obligation assumed or undertaken (either expressly or by operation of law) by the Company on or prior to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 1 contract
Indemnification by Seller. From and after the Closing Date (but subject to Section 6.1(A) and Section 6.4), Seller shall indemnify and will hold harmless Purchaser and shall reimburse Purchaser for indemnify Buyer, all Subsidiaries of Buyer and any lossof Buyer's Representatives (each, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, a "DamagesBuyer Indemnitee") arising from and against, and will compensate and reimburse each of the Buyer Indemnitees for, any Damages which are suffered or incurred by any of the Buyer Indemnitees or to which any of the Buyer Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third- party claim) and which arise from or in connection withas a result of:
(aA) any inaccuracy in or Breach of any of the representations and warranties of representation or warranty made by Seller in this Agreement as of the date of this Agreement (in each case, (i) after giving effect to any "Material Adverse Effect" or other materiality qualification or any similar qualification contained or incorporated directly in such representation or warranty, and (ii) without giving effect to any certificate delivered update to the Disclosure Schedule pursuant to Section 4.7);
(B) any inaccuracy in or Breach of any representation or warranty made by Seller pursuant to in this Agreement, or any actions, omissions or state of facts inconsistent with any Agreement as if such representation or warranty was made on and as of the Closing Date, except for representations or warranties which address matters as of a particular date, in which case, as of such particular date (for purposes of this clause in each case, (a)i) after giving effect to any "Material Adverse Effect" or other materiality qualification or any similar qualification contained or incorporated directly in such representation or warranty, each schedule and exhibit (ii) without giving effect to this Agreement shall be deemed a representation and warrantyany update to the Disclosure Schedule pursuant to Section 4.7);
(bC) any failure Liability of Seller that is not an Assumed Liability assumed by Buyer pursuant to Section 1.3;
(D) any inaccuracies in the Seller to perform Closing Certificate; or
(E) any Breach of any covenant or comply with any agreement made by it obligation of Seller under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification by Seller. Subject to the provisions of this Article VIII, Seller shall indemnify and hold harmless Purchaser Buyer, its successors and assigns, and its officers, managers, directors, employees, agents and Affiliates (“Buyer’s Indemnified Persons”) from and against, and shall reimburse Purchaser for Buyer’s Indemnified Persons for, any lossand all claims, liabilitylosses, claimliabilities, damage, expense (including, without limitationdamages, costs of investigation and defense and reasonable attorney's feesexpenses (including Legal Expenses) or diminution of value (collectively, "Damages") “Losses”), arising from out of, based upon or incurred in connection with:
(a) any inaccuracy in breach of any of the representations and warranties representation or warranty of Seller set forth in this Agreement or the Schedules, or in any certificate or transfer instrument delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)at Closing;
(b) any failure by breach of any covenant, agreement or other obligation of Seller to perform or comply with any agreement made by it under in this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) the litigation and other matters set forth in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial CodeSchedule 3.26; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made indemnification provided by Purchaser under this Section 7.1 after twenty four 8.1(c) with respect to Case No. 106CV068540 in Superior Court of the State of California, County of Santa Cxxxx (24) months after the “Subject Litigation”), shall not include any portion of the Losses resulting directly from actions taken or conduct by Buyer, or its employees, officers, members, or Affiliates existing on or prior to the Closing Date (including the employees, officers and members of any Affiliates existing on or prior to the Closing Date);
(d) the Excluded Liabilities, or Seller’s failure to perform, pay and discharge any Excluded Liability prior to or following the Closing;
(e) the operation of the Business on or prior to the Closing Date (including Liabilities relating to any Seller Deals in Progress), but specifically excluding the Assumed Liabilities, Ordinary Course Warranty Claims and Liabilities relating to the Buyer Deals in Progress; and
(f) enforcement of this Section 8.1.
Appears in 1 contract
Samples: Stock Purchase Agreement (Champion Enterprises Inc)
Indemnification by Seller. (a) Subject to the limitations of this Article 7, and in addition to the indemnities provided pursuant to Sections 5.7(e), 5.9(e) and 5.14, but not in duplication thereof, Seller shall hereby agrees to indemnify and hold harmless Purchaser Buyer, the Company and shall reimburse Purchaser for the Company Subsidiaries, and their respective officers, employees, directors, agents, successors and assigns (collectively, the "BUYER INDEMNITEES") from and against any loss, liability, claim, damageobligation, expense damage or deficiency (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, any "DamagesDAMAGE") of or to any Buyer Indemnitee arising out of or resulting from or in connection with:
(ai) the breach of any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty of Seller contained in this Agreement; (for purposes of ii) Seller's failure to perform in any material respect any covenant or agreement set forth in this clause Agreement; and (aiii) any cost or expense (including reasonable legal and other professional fees and expenses) (any "COST"), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim incurred by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) Buyer Indemnitee in connection with any of the transactions contemplated herein; andforegoing indemnification obligations of Seller or the enforcement by any Buyer Indemnitee of the provisions of this Section 7.1.
(eb) Seller's failure Seller shall have no liability to comply with any Buyer Indemnitee for indemnification under any provision of this Agreement unless written notice specifying in reasonable detail the "Bulk Sales Laws" under nature and amount of an Indemnification Claim is given to Seller prior to the Uniform Commercial Codesecond anniversary of the Closing Date; provided, however, that such time limitation shall not apply to (i) Seller shall have no obligation to indemnify Purchaser any Indemnification Claim for Damages until the aggregate Damages exceed $20,000 and, in such eventa breach of Section 3.4 or 3.5, for the full amount of such Damages, which an Indemnification Claim may be made or brought against Seller at any time; (ii) Seller' aggregate any Indemnification Claim for a breach of Section 3.9 or pursuant to Section 5.9(e), for which an Indemnification Claim may be made or brought against Seller through the thirtieth day after the date upon which the liability for Damages shall in no event exceed the Purchase Consideration, and giving rise to such Indemnification Claim may relate is barred by all applicable statutes of limitation; or (iii) any Indemnification Claim that exists prior to the second anniversary of the Closing Date and that has been the subject of a written notice specifying in reasonable detail the nature of the claim delivered by Buyer to Seller shall have no obligation prior to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the second anniversary of the Closing Date.
(c) Seller shall be liable to Buyer Indemnitees for indemnification under this Agreement only to the extent the cumulative total of Damages and Costs for all Indemnification Claims exceeds $150,000 (such deductible does not apply to Section 5.14 litigation, Section 5.9(e) tax obligations and Section 5.7(e) employee matters), and in no event shall Seller be liable for indemnification under this Agreement for any amount in excess of $10,000,000; provided, however, no limitation of liability provided in this paragraph (c) shall apply to any Damage or Cost arising out of or resulting from common law fraud in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Investors Financial Services Group Inc)
Indemnification by Seller. Seller shall fully pay, protect, defend, indemnify and hold harmless Purchaser WVAWC and shall reimburse Purchaser for its affiliates and their respective officers, directors and agents and representatives (“WVAWC Indemnified Parties”) from any lossand all Claims or Damages arising out of, liabilityresulting from, claimrelating to or caused by: (i) a misrepresentation, damageinaccuracy in or breach of (or any claim by any third party alleging or constituting a misrepresentation, expense (includinginaccuracy in, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(abreach of) any inaccuracy in representation or warranty of, or any failure to perform or nonfulfillment of the representations and warranties of Seller any provision or covenant contained in this Agreement or any other transaction document, by Seller; (ii) any and all liabilities of Seller of any nature (including the retained liabilities in any certificate delivered by Seller pursuant Section 1.3(a)), whether due or to this Agreementbecome due, whether accrued, absolute, contingent or otherwise, whether accruing prior to or after the Closing Date, or arising out of any actionstransaction entered into, omissions or any state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken event occurring on or omitted prior to such date, and any Encumbrance affecting the Assets or the System; (iii) assessments, charges and other similar claims due or owing, directly or indirectly, by Seller or otherwise as a result of or on account of the Assets or the System at any time on or prior to the Closing Date; (iv) the ownership and/or operation of any of the Assets or the System on or prior to the Closing Date; (v) any proceeding now existing or hereafter arising and relating to the Assets or the System and arising from events or matters occurring on or prior to the Closing Date, regardless of when realized; (vi) any liabilities arising from or related to assets, properties and rights of Seller excluded from the Assets; (vii) any and all liabilities relating to the employees, agents and independent contractors of Seller who performed services for Seller or related to the System or the Assets, regardless of whether such liabilities arose from events occurring prior to or after the Closing; (viii) the failure to comply with the provisions of any so-called bulk transfer or bulk sale law of any jurisdiction in connection with the sale of the System and the Assets to WVAWC, and (ix) transaction costs and expenses incurred by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any this Agreement or the contemplated transactions. No information or knowledge acquired, or investigations conducted, by WVAWC or its representatives, of Seller, the transactions contemplated herein; and
(e) Seller's failure to comply with Assets, the "Bulk Sales Laws" under the Uniform Commercial Code; providedSystem or otherwise, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationany way limit, and (iii) Seller shall have no obligation to indemnify Purchaser or constitute a waiver of, or a defense to, any claim for any claims made indemnification by Purchaser WVAWC Indemnified Parties under this Section 7.1 after twenty four (24) months after the Closing DateAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification by Seller. Subject to the terms and conditions of this Article 8, including the limitations set forth in Section 8.6 below from and after Closing, Seller shall indemnify and hold harmless Purchaser Buyer and shall reimburse Purchaser for any loss, liability, claim, damage, expense its Affiliates (including, without limitationfrom and after the Closing, costs the Company and its Affiliates) and the shareholders, directors, officers, partners, employees, successors, assigns, representatives and agents of investigation and defense and reasonable attorney's fees) or diminution each of value them in their capacities as such (collectively, "Damages"the “Buyer Indemnified Persons”), from and against, and Seller waives any claim for contribution or indemnity against the Company and its Affiliates with respect to, any and all claims, losses, monetary damages, Liabilities, fines, fees, penalties, expenses or costs (“Losses”), plus reasonable attorneys’ fees and expenses, including court costs and expert witness fees and costs, incurred in connection with Losses and/or enforcement of this Agreement (in all, “Indemnified Losses”) arising incurred or to be incurred by any of them resulting from or in connection witharising out of:
(a) the breach of any inaccuracy in agreement, covenant, representation, warranty, or other obligation of Seller made or incurred under or pursuant to this Agreement or any Related Agreement, except where and to the extent that Buyer, as of the Effective Time, had Knowledge of any then-existing pending claim, breach or violation which would render any of the such representations and warranties of Seller in this Agreement to be false or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty materially misleading (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller for purposes of determining the Knowledge of Buyer as of the Effective Time, the Knowledge of Xxxx Xxxxx or any other employee of the Company shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 andbe disregarded, in such event, for the full amount of such Damages, and (ii) Seller' aggregate liability for Damages to the extent that Buyer or its representatives shall in no event exceed the Purchase Considerationhave investigated any such pending claim, breach or violation with Seller or its representatives, and Seller nevertheless makes a representation or warranty to the contrary, then the Knowledge of Buyer shall be disregarded); and
(iiib) transaction costs and expenses incurred by or on behalf of the Company or Seller shall have no obligation in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Dateinvestment banker, broker, lawyer or accountant.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the provisions of this Article X and except with respect to indemnification for Taxes under Article VII, effective as of and after the Closing Date, Seller shall indemnify indemnify, defend and hold harmless Purchaser Buyer and shall reimburse Purchaser for any lossits Affiliates and Subsidiaries, liabilityand their respective managers, claimofficers, damagedirectors, expense (includingemployees, without limitationmembers, costs partners, shareholders, Subsidiaries, Affiliates, representatives, agents, and all of investigation their respective successors and defense and reasonable attorney's fees) or diminution of value assigns (collectively, "Damages") the “Buyer Indemnified Parties”), from and against any and all Losses incurred or suffered by any of the Buyer Indemnified Parties, to the extent arising from out of or in connection withrelating to:
(ai) any inaccuracy breach of any representation or warranty of Seller contained in any Article III of this Agreement as of the date hereof or as of the Closing Date (or, in the case of representations and or warranties that are made as of Seller in this Agreement an earlier date, as or such earlier date) or of any statement made in any certificate delivered by Seller or its Affiliates with respect thereto as of the Closing Date (or, in the case of representations or warranties that are made as of an earlier date, as or such earlier date), it being understood that, to the extent a Loss is described in both Section 7.1 and this Section 10.2(a)(i), Section 7.1 shall control;
(ii) any breach of any covenant or agreement of Seller contained in this Agreement or the Side Letter;
(iii) any Excluded Liabilities;
(iv) any Indebtedness of the Transferred Entity Group or the TMA Business existing as of the Closing; or
(v) other than the Assumed Liabilities, any Losses which are Liabilities of the Seller Group (excluding the TMA Business and the members of the Transferred Entity Group) or the Seller Retained Businesses for which, under applicable law, any member of the Transferred Entity Group could be held liable.
(b) Notwithstanding any other provision to the contrary, Seller shall not be required to indemnify, defend or hold harmless any Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Losses pursuant to this Agreement, Section 10.2(a)(i) or (iv) (except that clauses (ii) and (iii) below shall not apply with respect to breaches of the Seller Fundamental Representations) or any actionsTaxes pursuant to Section 7.1 (including, omissions for the avoidance of doubt, any Losses pursuant to Section 7.1(vii) relating thereto):
(i) to the extent that such Losses or state Taxes were included in the calculation of facts inconsistent with any Closing Working Capital or Closing Indebtedness Amount and reflected or reserved for on the Post-Closing Statement as finally determined pursuant to Section 2.8 and included in the calculation of the Final Purchase Price;
(ii) unless such representation claim individually or warranty a series of related claims involves Losses or Taxes in excess of $50,000 (the “De Minimis Amount”), it being understood that if such Losses or Taxes do not exceed the De Minimis Amount, such Losses or Taxes shall not be applied to or considered for purposes of calculating the aggregate amount of the Buyer Indemnified Parties’ Losses or Taxes under this clause Section 10.2(b) (a)provided that, each schedule and exhibit notwithstanding anything to the contrary herein, this Agreement Section 10.2(b)(ii) shall be deemed a representation and warrantynot apply to any Losses under Section 10.2(a)(iv) or Taxes to the extent that the aggregate amount of all such Losses or Taxes exceed $250,000);
(biii) for Losses under Section 10.2(a)(i) (other than any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf Losses in respect of Seller, except for any claims for which Purchaser is required to indemnify Seller Taxes pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any 7.1), until the aggregate amount of such person with Seller (or any person acting on its behalf) in connection with any Losses of the transactions contemplated hereinBuyer Indemnified Parties exceeds $450,000 (the “Deductible”), it being understood that if such Losses exceed the Deductible, Seller shall be obligated for the Buyer Indemnified Parties’ Losses under Section 10.2(a)(i) from the first dollar of such Losses, including to the extent below the Deductible; and
(eiv) Seller's failure for any Losses under Section 10.2(a)(i) (other than any Losses resulting from a breach of the Seller Fundamental Representations or any Losses in respect of Taxes pursuant to comply with Section 7.1) to the "Bulk Sales Laws" under extent that the Uniform Commercial Codeaggregate amount of such Losses exceeds $1,350,000 (the “Cap”) or, in the case of any Losses resulting from a breach of the Seller Fundamental Representations or Section 3.18(b) (Title to Assets), to the extent that the aggregate amount of such Losses exceeds the Base Purchase Price; provided, however, that to the extent that Losses under Section 10.2(a)(i) for breaches of Section 3.18(a) (Sufficiency of Assets) exceed the Cap, the Cap solely with respect to such Losses shall be $28,350,000 and provided, further, that Seller shall not be required to indemnify, defend or hold harmless any Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, Losses under Section 10.2(a)(i) for breaches of Section 3.18(a) (Sufficiency of Assets) in excess of $1,350,000 unless and only to the extent that the aggregate amount of such Losses exceeds $10,350,000.
(c) Notwithstanding any other provision to the contrary, Seller shall not be required to indemnify, defend or hold harmless any Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, (i) Seller shall have no obligation any Losses to indemnify Purchaser the extent that such Losses were included in the calculation of Closing Working Capital or Closing Indebtedness Amount and reflected or reserved for Damages until on the Post-Closing Statement as finally determined pursuant to Section 2.8 and included in the calculation of the Final Purchase Price or (ii) any Losses pursuant to Section 10.2(a)(i) or (ii) to the extent that the aggregate Damages exceed $20,000 and, in such event, for the full amount of such DamagesLosses exceeds the Base Purchase Price.
(d) Notwithstanding any other provision to the contrary, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation not be required to indemnify Purchaser for indemnify, defend or hold harmless any claims Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Losses arising out of the IP Disputes (other than the IP Dispute claim made by Purchaser under this Section 7.1 after twenty four (24RPost Communications or RPost Holdings or their respective Affiliates) months after unless such claim individually or a series of related claims involves Losses in excess of the Closing DateDe Minimis Amount.
Appears in 1 contract
Indemnification by Seller. Subject to the limitations of this Section 8, Seller shall indemnify indemnify, defend, and hold harmless Purchaser Buyer and shall reimburse Purchaser for each Acquired Company and their respective Representatives, stockholders, controlling persons and Affiliates (collectively, the "INDEMNIFIED PERSONS") against and in respect of any loss, liability, claim, damage, or expense (including, without limitation, including costs of investigation and defense and reasonable attorney's attorneys' fees) ), whether or diminution of value not involving a third-party claim (collectively, "DamagesDAMAGES") arising from that any Acquired Company or in connection with:
Buyer shall incur or suffer, which arise, result from, or relate to, directly or indirectly, (ai) any inaccuracy in breach of any of the representations and warranties contained in Section 2 of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreementof Seller's Closing Documents, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(bii) any failure by Seller to perform any of its covenants or comply with agreements in this Agreement or in any schedule, certificate, exhibit, agreement made or other instrument furnished or to be furnished by it Seller or the Company under this Agreement;
, (c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(diii) any claim by any person Person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person Person with either Seller or any Acquired Company (or any person Person acting on its their behalf) in connection with any of the transactions contemplated herein; andContemplated Transactions, (iv) any Taxes of the Acquired Companies attributable to periods (or portions thereof) ending on or prior to the Closing Date to the extent such Taxes exceed any accrual for Taxes on the Closing Schedule or (v) any claim identified on EXHIBIT 8.2 hereof. Buyer and Seller agree that the absence of the phrase "diminution in value" in the definition of "Damages" shall not be dispositive of whether, or under what circumstances, diminution in value is an appropriate measure of damages. Notwithstanding the foregoing, Seller shall not be required to indemnify Buyer for any Damages relating to Taxes (other than for the matters set forth as item 1 in part 2.12.1 of the Schedule which shall be entirely the responsibility of Seller, and for which Seller shall provide indemnity hereunder) until the amount of such Damages exceeds the amount of tax benefit obtained by the Acquired Companies through the use of Acquired Company net operating losses (other than those relating to the restructuring provision, the long-term service award provision and the technical warranty provision in the audited statutory balance sheet of the Company as at December 31, 1999) as of the Closing Date.
(e) Seller's failure to comply with 8.2.1 The remedies provided for in this Section 8.2 shall constitute the "Bulk Sales Laws" under the Uniform Commercial Codeexclusive remedy of Buyer from and against any and all Damages described in Section 8.2; provided, however, that (i) Seller the foregoing shall have no obligation to indemnify Purchaser not in any way limit claims for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datefraud or specific performance or other equitable relief.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cherokee International LLC)
Indemnification by Seller. (a) Subject to the provisions of this Article IX, and except with respect to indemnification for Taxes (other than Section 3.15 Taxes), which shall be governed exclusively by Article VI, effective as of and after the Closing, Seller shall indemnify indemnify, defend and hold harmless (or, as applicable, shall cause the relevant Seller Entity to indemnify, defend and hold harmless) Purchaser and shall reimburse Purchaser for any lossits Affiliates, liability, claim, damage, expense (including, without limitationfrom and after Closing, costs of investigation and defense and reasonable attorney's fees) or diminution of value the Purchased Companies (collectively, "Damages") arising the “Purchaser Indemnified Parties”), from and against any and all Covered Losses incurred or in connection with:
(a) any inaccuracy in suffered by any of the Purchaser Indemnified Parties, to the extent arising out of or resulting from (i) the failure of any representation or warranty of Seller contained in Article III (other than the representations and warranties of Seller contained in this Agreement Section 3.14 (Taxes), or contained in any certificate delivered by or on behalf of Seller pursuant to this Agreement, or any actions, omissions or state to be true and correct as of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller the Closing Date (or any person acting on its behalf) in connection with any respect to representations and warranties that are made as of a specific date, the transactions contemplated herein; and
(e) Seller's failure of such representations and warranties to comply with the "Bulk Sales Laws" under the Uniform Commercial Codebe true and correct as of such date); provided, however, that for purposes of this Article IX, all such representations and warranties shall be read without giving effect (other than for purposes of (x) Section 3.6(b), Section 3.7(b), Section 3.11(a) or Section 3.15(a), or (y) reference to the defined term “Material Contract”) to any material or “Business Material Adverse Effect” qualifier, material to the Business qualifier, or other similar qualifier therein; (ii) any breach of any covenant or agreement of Seller contained in this Agreement; and (iii) any Retained Liabilities (including, for the avoidance of doubt, Retained Liabilities of any of the Purchased Entities or Purchased Ventures).
(b) Notwithstanding any other provision to the contrary:
(i) Seller shall have no obligation not be required to indemnify indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Covered Losses pursuant to Section 9.2(a)(i), (A) to the extent that such Covered Losses are expressly included as current liabilities in the calculation of Working Capital on the Post-Closing Statement (as adjusted pursuant to Section 2.9(d)) or (B) other than with respect to Seller’s Fundamental Representations, Section 3.8(a) (Title), Section 3.15(o) (Business Employees) and Section 3.19 (Brokers), unless such claim, or series of related claims, involves Covered Losses in excess of $75,000 (the “De Minimis Amount”) and if such Covered Losses do not exceed the De Minimis Amount, such Covered Losses shall not be applied to or considered for Damages the Deductible or otherwise for purposes of calculating the aggregate amount of the Purchaser Indemnified Parties’ Covered Losses under this Section 9.2(b)(i); and (C) until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damagesthe Purchaser Indemnified Parties’ Covered Losses under Section 9.2(a)(i) (other than with respect to Seller’s Fundamental Representations, Section 3.8(a) (Title), Section 3.15(o) (Business Employees) and Section 3.19 (Brokers)) exceeds $20,000,000 (the “Deductible”), after which Seller shall be obligated for all the Purchaser Indemnified Parties’ Covered Losses under Section 9.2(a)(i) in excess of the Deductible, subject to Sections 9.2(b)(i)(A) and (B) and Section 9.2(b)(ii); and
(ii) Seller' aggregate liability for Damages Other than with respect to breaches of the representation and warranty in Section 3.15(o) (Business Employees), the cumulative indemnification obligation of Seller under Section 9.2(a)(i) (excluding any amounts with respect to breaches of the representation and warranty in Section 3.15(o) (Business Employees)) shall in no event exceed $147,500,000 (the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date“Cap”).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Cbre Group, Inc.)
Indemnification by Seller. Seller shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule schedule, appendix, and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' 's aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.
Appears in 1 contract
Indemnification by Seller. Seller shall agrees to indemnify Buyer, its directors, managers, officers, shareholders, agents, representatives and hold harmless Purchaser and shall reimburse Purchaser for any lossemployees, liabilityas the case may be, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages"the “Buyer Parties”) arising and hold the Buyer Parties harmless from and against any and all Claims that arise out of or result from, but only to the extent that such matters exceed, in connection withthe aggregate, $10,000:
(a) the inaccuracy of any inaccuracy in representation or breach of any of the representations and warranties of warranty, covenant or agreement made by Seller in this Agreement Agreement, including exhibits and schedules, or in any certificate certificate, document or other instruments delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty)in connection herewith;
(b) any failure obligation or liability specifically assumed by Seller to perform or comply with any agreement made by it under this Agreementhereunder;
(c) any operations obligation, contract or business conductedliability of Seller not constituting one of the Assumed Liabilities, commitment made, service rendered or including without limitation any violation of any Environmental Law based on (A) a condition existing prior to the Closing Date, or any action taken (B) the acts or omitted by omissions of Seller or on behalf of Seller’s agents, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinemployees or contractors;
(d) any claim and all claims, demands, liabilities, penalties, actions, lawsuits, or proceedings brought against Buyer Parties to the extent that they relate to claims made by any person of the Employees with respect to their employment by Seller or their entitlement to benefits under Seller’s Employee Benefit Plans;
(e) any and all claims, demands, liabilities, penalties, actions, lawsuits, or proceedings brought against any Buyer Parties to the extent that they relate to actions taken or omitted to be taken, violations of law prior to the Closing Date in connection with the Purchased Assets;
(f) any and all taxes and charges claimed to be due or collected by any federal, state, or local taxing authorities with respect to Seller for any business or activity of Seller prior to the Closing Date, including any and all taxes owed by Buyer which arise in respect of any transaction contemplated by this Agreement, other than any taxes or charges incurred by any Buyer Party in its capacity as a direct or indirect equity owner of Seller;
(g) any claim for a finder’s fee, brokerage or finder's fees or commissions or similar payments based upon other commission arising by reason of any agreement or understanding services alleged to have been made by rendered to or at the instance of any such person Seller with Seller (or any person acting on its behalf) in connection with any of respect to the transactions contemplated hereinhereby; and
(eh) Seller's failure any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable legal fees and expenses, incident to comply with any of the "Bulk Sales Laws" under foregoing or incurred in attempting to oppose the Uniform Commercial Code; providedimposition thereof, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, or in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under enforcing this Section 7.1 after twenty four (24) months after the Closing Dateindemnity.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the applicable limitations in this ARTICLE VIII, from and after the Closing, Seller shall indemnify and hold harmless Purchaser the Buyer, the Company and shall reimburse Purchaser for its Subsidiaries, and the officers, directors and employees (in the case of such officers, directors and employees, acting in their capacity as such) of the Buyer, the Company and the Company’s Subsidiaries (each a “Buyer Indemnitee” and collectively, the “Buyer Indemnitees”) against any lossand all losses, liabilityfines, claimmonetary penalties, damageTaxes, expense (includingmonetary damages, without limitationfees, obligations, claims of any kind, costs of investigation or expenses (including court costs, reasonable outside legal and defense accounting, and reasonable attorney's feesoutside professional services expenses and costs incurred in connection with an Action to the extent such Action arises out of or results from the indemnifiable matters specified in this ARTICLE VIII) (each a “Loss” or diminution of value (collectively, "Damages"“Losses”) that any Buyer Indemnitee suffers, sustains or incurs to the extent arising from out of or in connection withas a result of:
(ai) any inaccuracy or breach, as of the date of this Agreement (or, in the case of a representation or warranty made as of a particular date, as of such date) of a representation or warranty made by Seller in ARTICLE III or in any Schedule or Exhibit required to be delivered by Seller (in Seller’s capacity as Seller hereunder) pursuant hereto (it being agreed and acknowledged by the parties that for purposes of the right to indemnification pursuant to this Section 8.1(a)(i), such representations and warranties of Seller in this Agreement shall not be deemed qualified by any references herein or in any certificate delivered by Seller pursuant therein to this Agreementmateriality for purposes of determining the amount of Loss attributable to a breach thereof; provided, that such materiality qualifications and references shall be given their full effect for purposes of determining whether a breach or any actionsinaccuracy has occurred; provided, omissions further, that all references to materiality shall be given their full effect to the extent a representation or state warranty requires disclosure of facts inconsistent with any a list of items of a material nature or above a specified threshold or where such representation or warranty would otherwise be rendered meaningless by disregarding materiality references); and
(ii) any breach of any covenant or agreement made by Seller in this Agreement.
(b) Subject to the applicable limitations in this ARTICLE VIII, from and after the Closing, Seller shall indemnify and hold harmless the Buyer Indemnitees against Seller’s Pro- Rata Share of any and all Losses (i.e., 80% of any such Loss or Losses) that any Buyer Indemnitee suffers, sustains or incurs to the extent arising out of or as a result of:
(i) any inaccuracy or breach as of the date of this Agreement (or, in the case of a representation or warranty made as of a particular date, as of such date) of any representation or warranty made by the Seller regarding the Company contained in ARTICLE IV or in any Schedule or Exhibit required to be delivered by the Seller pursuant thereto (it being agreed and acknowledged by the parties that for purposes of the right to indemnification pursuant to this clause (aSection 8.1(b)(i), each schedule such representations and exhibit warranties of the Seller regarding the Company shall not be deemed qualified by any references herein or therein to this Agreement materiality or to whether or not any such breach results or would reasonably be expected to result in a Material Adverse Effect for purposes of determining the amount of Loss attributable to a breach thereof; provided, that such materiality or Material Adverse Effect qualifications and references shall be deemed given their full effect for purposes of determining whether a breach or inaccuracy has occurred; provided, further, that all references to materiality shall be given their full effect to the extent a representation and warrantyor warranty requires disclosure of a list of items of a material nature or above a specified threshold or where such representation or warranty would otherwise be rendered meaningless by disregarding materiality or Material Adverse Effect references);
(bii) [Intentionally Omitted];
(iii) any failure (A) Company Transaction Expenses to the extent unpaid following the Closing or (B) any Closing Liabilities to the extent unpaid following the Closing, in each such case, except to the extent otherwise taken into account as a dollar-for-dollar adjustment to the Closing Cash Consideration;
(iv) any Taxes which Seller has agreed to pay pursuant to Section 6.4(a) and all Pre-Closing Taxes; and
(v) any Action by Seller a stockholder or former stockholder of the Company, or by any other Person or Governmental Authority, to perform the extent asserting: (A) ownership or comply rights to ownership of any shares of capital stock of the Company at any time prior to the Closing; (B) any right of a stockholder of the Company with respect to any agreement made action or omission occurring prior to the Closing (other than the right to receive the applicable amounts payable as provided for hereunder), including any option, preemptive right or right to notice or to vote; (C) with respect to any action or omission occurring prior to the Closing, any right under the certificate of incorporation or By-laws of the Company, each as in effect on the date hereof; or (D) any claim that its shares were wrongfully purchased by it under this Agreement;the Buyer in connection with the transactions contemplated hereby to occur at the Closing.
(c) any operations or business conducted, commitment made, service rendered or condition existing No Buyer Indemnitee (other than the Buyer or any action taken successor or, subject to Section 9.3, permitted assignee of the Buyer) shall be entitled to assert any indemnification claims pursuant to this Section 8.1 or omitted by or exercise any other remedy under this Agreement; provided, that, subject to the limitations set forth in this Agreement, Buyer may exercise such rights hereunder on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateBuyer Indemnitee.
Appears in 1 contract
Indemnification by Seller. Except as otherwise limited by this Article VI or by Section 3.3 (Survival of Representations and Warranties and Covenants), Seller shall indemnify agrees to indemnify, defend and hold harmless Purchaser and shall reimburse Purchaser Holdings and each of its respective officers, directors, employees, agents, shareholders and controlling persons, and their respective successors and assigns, separate consideration for which is hereby acknowledged, of, from and against and in respect of any lossand all liabilities, liabilityactions, claimlawsuits, damageconduct, expense (includinglosses, without limitationdamages, demands, assessments, claims, costs and expenses (including interest, awards, judgments, penalties, settlements, fines, diminutions in value, costs and expenses incurred in connection with investigating and defending any claims or causes of investigation action including reasonable attorneys' fees and defense expenses and all reasonable attorney's feesfees and expenses of consultants and other professionals) ("DAMAGES") actually suffered, incurred or diminution of value realized by such party (collectively, "DamagesPURCHASER LOSSES") arising out of or resulting from or in connection withrelating to any of the following:
(a) any inaccuracy in misrepresentation, breach of warranty or breach of any of the representations and warranties of covenant or agreement made or undertaken by Seller in this Agreement or any misrepresentation in or omission from any certificate other agreement, certificate, exhibit or writing delivered by Seller to Purchaser pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of including the Schedules; provided that this clause (a)shall apply with respect to any misrepresentation, each schedule and exhibit breach of warranty or omission if, but only if, the representation, warranty or omission is set forth in a provision that survives the Closing pursuant to this Agreement shall be deemed a representation and warranty)Section 3.3;
(b) any failure by Seller Damages or Purchaser Losses (other than the Assumed Liabilities) relating to perform Seller, Holdings, the Assets or comply with the Business, whether known or unknown, now existing or hereafter arising, contingent or liquidated, (including without limitation, any agreement made by it under this Agreement;Tax liabilities) accruing or arising prior to the Closing Date; and
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted services provided by or on behalf of Seller, except for Seller or Holdings on or prior to the Closing Date or with respect to any claims for which Purchaser is required to indemnify Seller made pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged warranties to have been made by any such person with Seller (or any person acting on its behalf) third persons in connection with services provided by or on behalf of Seller or Holdings on or prior to the Closing Date. Notwithstanding the foregoing, Seller shall not be liable under clause (a) of this Section 6.2 based upon a misrepresentation or breach of warranty or omission unless and until the aggregate amount of any Purchaser Losses exceeds $2.0 million at which time all Purchaser Losses in excess of the transactions contemplated herein; and
(e) such amount shall be subject to indemnification by Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate 's liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.under
Appears in 1 contract
Indemnification by Seller. From and after the Closing (but subject to the provisions of this Article 4), Seller shall will indemnify Buyer, the Companies, each of Buyer’s Affiliates and each of the Companies’ Affiliates after the Closing (all such foregoing persons, collectively, the “Buyer Indemnitees”) and hold the Buyer Indemnitees harmless Purchaser and shall reimburse Purchaser for from any lossLosses incurred by a Buyer Indemnitee, liability, claim, damage, expense (including, without limitation, costs of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") arising from or in connection withto the extent resulting from:
(a) a breach or inaccuracy of any representation or warranty contained in Article 2 (except for a breach or inaccuracy of any representation or warranty contained in Section 2.09(e)); provided, however, that, solely for purposes of calculating any Losses (but not for determining whether any breach of a representation or warranty has occurred), if any such representation is qualified by the use of the representations and warranties of Seller in this Agreement term “Material Adverse Effect” or in by the word “material” or by any certificate delivered by Seller pursuant to this Agreementword formed from such words, or any actions, omissions or state of facts inconsistent with any then such representation or warranty will be construed as if the word “material” (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a such words formed therefrom) or the term “Material Adverse Effect” were not included in such representation and or warranty);
(b) any failure fraud by Seller to perform or comply with any agreement made by it under this Agreementon behalf of Seller;
(c) any operations breach by a Restricted Person of his or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 hereinher obligations under the Restrictive Covenant Agreement;
(d) any claim by nonfulfillment or breach of any person for brokerage covenant or finder's fees agreement of any Company (required to be performed at the Closing) or commissions Seller or similar payments based upon Seller’s Representative (required to be performed at any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalftime) contained in connection with any of the transactions contemplated herein; andthis Agreement;
(e) Seller's failure any Indebtedness or Transaction Expenses not paid at or prior to comply with the "Bulk Sales Laws" under Closing and not taken into account in determining the Uniform Commercial Code; provided, however, that Final Aggregate Closing Consideration;
(f) any Seller Taxes;
(g) any Schedule 4.03(g) Item;
(h) intentionally omitted;
(i) Seller shall have no obligation to indemnify Purchaser for Damages until a breach or inaccuracy of any representation or warranty contained in Section 2.09(e); or
(j) any Third Party Claim arising out of (i) the aggregate Damages exceed $20,000 andpresence of any substance, material or waste that is identified or defined as hazardous by any Governmental Authority, as such identification may be amended at any time in such event, for the full amount of such Damagesfuture, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Considerationsolid wastes, and asbestos, PCBs, underground storage tanks, groundwater contamination, well, urea-formaldehyde, oil, petroleum, petroleum product and/or (iii) Seller shall have no obligation the violation or potential violation of any Environmental Laws, in each case, which Third Party Claim arose from circumstances which existed prior to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Dateand related to the Owned Real Property or the Leased Real Property.
Appears in 1 contract
Samples: Stock Purchase Agreement (Knight Transportation Inc)
Indemnification by Seller. Subject to the terms and conditions of this Article VIII, Seller shall agrees to indemnify and hold harmless Purchaser each of Buyer, its respective officers, directors, shareholders and shall reimburse Purchaser for any Affiliates and the successors and assigns of each of them (the party or parties being indemnified collectively referred to herein as the "Buyer Indemnified Party") from and against each and every demand, claim, loss, liability, claim, damage, cost and expense (including, without limitation, costs of investigation and defense interest, penalties, and reasonable attorney's feesattorneys' fees and disbursements) or diminution of value (collectively, "DamagesLosses") arising imposed upon or incurred by the Buyer Indemnified Party, directly or indirectly resulting from or in connection with:
arising out of (ai) any inaccuracy breach of any representation or warranty of Seller contained herein or in any of the representations Related Agreements and warranties any actual or threatened action or proceeding in connection therewith, (ii) any failure to comply with any agreement of Seller in this Agreement contained herein or in any certificate delivered of the Related Agreements and any actual or threatened action or proceeding in connection therewith, any claim or demand for commission or other compensation arising out of the transactions contemplated by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall by any broker, finder or agent or agent claiming to be deemed a representation and warranty);
entitled thereto, (biii) any failure by Seller to perform or comply with any agreement made by it "bulk sales" law under this Agreement;
(c) the 38 40 Uniform Commercial Code, the tax laws of any operations or business conducted, commitment made, service rendered or condition existing jurisdiction or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required similar applicable laws applicable to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
by this Agreement, or (eiv) Seller's failure the Retained Liabilities. Each matter for which Seller has agreed to comply with provide indemnification pursuant to this Section 8.1 hereof is hereinafter referred to individually as a "Claim" and collectively as the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing DateClaims."
Appears in 1 contract
Indemnification by Seller. It is understood and agreed that LBI Media and Buyer do not assume and will not be obligated to pay any liability of Seller shall indemnify under the terms of this Agreement or otherwise and will not be obligated to perform any obligations of Seller of any kind or manner, except in connection with the Assumed Contracts and with respect thereto only to the extent such obligations arise subsequent to the consummation of the transaction contemplated hereby on the Closing Date. Seller hereby agrees to indemnify, defend and hold harmless Purchaser LBI Media and shall reimburse Purchaser Buyer, their successors and assigns, for any lossa period of one year following the consummation of the purchase-and-sale transaction contemplated hereby on the Closing Date, liabilityfrom and against:
10.1.1 Any and all Damages, claimoccasioned by, damagearising out of or resulting from the Purchased Assets or the ownership or operation of the Station prior to the Closing Date, expense (including, without limitationbut not limited to, costs of investigation any and defense all claims, liabilities and reasonable attorney's fees) obligations arising or diminution of value (collectively, "Damages") arising from or in connection with:
(a) any inaccuracy in required to be performed prior to the Closing Date under any of the representations Assumed Contracts or otherwise with respect to Seller’s ownership and warranties operation of the Station prior to the Closing Date; and
10.1.2 Any and all Damages occasioned by, arising out of or resulting from any material misrepresentation, material breach of warranty or covenant, or material default or material nonfulfillment of any agreement on the part of Seller under this Agreement, or from any material misrepresentation in or material breach of any certificate, agreement, appendix, Schedule, or other instrument furnished to LBI Media or Buyer pursuant to this Agreement or in connection with the transaction contemplated hereby; provided that any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state breach of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement Section 7.7 shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any material regardless of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount cash value of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Datebreach.
Appears in 1 contract
Indemnification by Seller. (a) Subject to the provisions of Article VIII and the limitations set forth in Section 10.1 and Section 10.4, the Seller shall hereby agrees to indemnify and hold harmless Purchaser the Buyer and shall reimburse Purchaser for any lossits directors, liabilityofficers, claimemployees, damage, expense (including, without limitation, costs of investigation stockholders and defense and reasonable attorney's fees) or diminution of value Affiliates (collectively, the "DamagesBuyer Indemnified Parties") arising harmless from and against any and all Losses imposed upon or incurred by the Buyer Indemnified Party (any of such Losses by Buyer Indemnified Parties, a "Buyer Claim") as a result of or in connection withwith any of the following:
(ai) any inaccuracy in any or breach of a representation or warranty as of the representations and warranties date hereof or as of the Closing Date (except with respect to Section 5.17 which is provided for pursuant to Section 8.1(a)) made by the Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the Uniform Commercial Codehereto; provided, however, that for purposes of this provision, with respect to any representation or warranty that is qualified by materiality, Material Adverse Effect or knowledge, a breach of such representation or warranty shall be deemed to occur if there would have been a breach of such representation or warranty absent such qualification;
(iii) Seller shall have no the breach, or default in the performance by the Seller, of any covenant, agreement or obligation to indemnify Purchaser be performed by the Seller pursuant to this Agreement or the Transition Services Agreement;
(iii) any Losses resulting from any third party claims or Actions or any other conditions (including, but not limited to, taxes, environmental conditions, litigation, product and service warranty and liability matters and employment-related matters) to the extent such Losses relate to an act, event or condition occurring or existing at or prior to the Closing Date; provided, however, that any Liability that is covered by the Purchase Price adjustment provisions of Section 2.5 shall not give rise to any indemnification obligation under this Section 10.2(a)(iii) to the extent such Liability is covered by the adjustment provisions of Section 2.5; provided, further, that indemnification rights under this Section 10.2(a)(iii) shall survive the Closing for Damages until a period of two years beginning on the Closing Date, but not longer, except with respect to indemnification rights for any third party claims or Actions or environmental conditions which shall survive indefinitely;
(iv) any Losses resulting from violations of plumbing licensing requirements;
(A) any Losses in connection with any Company Plan that is not a Transferred Company Plan, (B) any Losses in connection with a Transferred Company Plan to the extent such Losses arise from an act, event or condition occurring or existing at or prior to the Closing Date, except for employment agreements with respect to which Losses arise from an act, event or condition occurring after the Closing Date (C) any Losses resulting from the failure to file GUST amendments that were required to be filed on or before February 28, 2002 and (D) any Losses resulting from the participation in employment benefit plans pursuant to a collective bargaining agreement or any other agreement with any labor union or association by employees who are not members of any labor union, association or other representative of employees during periods at or prior to the Closing Date;
(vi) any Losses (A) resulting from third party claims or Actions that would have been covered by any type of insurance to the extent such claim or Action is not covered as a result of denials of coverage or inadequate insurance coverage, (B) resulting from deductibles, retrospectively rated insurance policies, self-insured retentions, risk-retention groups or other similar arrangements or (C) resulting from claims incurred on or prior to the Closing Date (whether or not reported) by Company Employees and not paid on or prior to the Closing Date with respect to any life insurance, health, medical, dental, disability or other similar welfare plan, agreement, program, policy or other arrangement;
(vii) any Losses resulting from the failure to hold a sufficient, valid and enforceable license to use any Intellectual Property used in the business of any Company Subsidiary as currently conducted or that has been used in such business at any time prior to the Closing, including but not limited to any remediation costs, which, to the extent that is commercially reasonable, shall be the cost of obtaining a license of the currently available version of such Intellectual Property; and
(viii) any Losses relating to the failure to collect in the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, the Receivables outstanding as of the Closing Date (iiother than the Scheduled Amounts) Seller' aggregate liability (net of the allowance for Damages shall in no event exceed doubtful accounts set forth on the Purchase Consideration, and (iiiMost Recent Balance Sheet) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) within 14 months after the Closing DateDate (provided that each Company Subsidiary has used its commercially reasonable efforts to collect such Receivables). Notwithstanding the foregoing, the first parenthetical to this subparagraph (viii) shall not apply to any amount set forth on Schedule 5.19
(a) to the extent (A) such amount has been included as accounts receivable in the calculation of assets for determining Closing Net Asset Value and (B) there has not been included as billings in excess of costs in respect of such amount an xxxxx xx greater number in the calculation of liabilities for determining Closing Net Asset Value.
(b) Promptly after receipt by a Buyer Indemnified Party of notice of the commencement of an Action or other event giving rise to a Buyer Claim with respect to which such Buyer Indemnified Party is entitled to indemnification under this Section 10.2, such Buyer Indemnified Party shall notify (the "Buyer Claim Notice") the Seller in writing of the commencement of such Action or the assertion of such Buyer Claim; provided, however, that if such Buyer Claim Notice is given within the period prescribed in Section 10.1, then the failure to give such Buyer Claim Notice promptly shall not affect the right to indemnification hereunder except to the extent of actual prejudice to the Seller. The Seller shall have the option, and shall notify such Buyer Indemnified Party in writing within 20 Business Days after the date of the Buyer Claim Notice of its election, either (i) to participate (at the expense of the Seller) in the defense of such Action or Buyer Claim (in which case the defense of such Action or Buyer Claim shall be controlled by such Buyer Indemnified Party) or (ii) to take charge of and control the defense of such Action or Buyer Claim (at the expense of the Seller) with counsel reasonably acceptable to such Buyer Indemnified Party; provided, however, that the Seller shall not be entitled to control any Buyer Claim already covered by insurance or relating to construction, warranty or service disputes, except for a contractual dispute with a customer with whom a Company Subsidiary does not have a material ongoing relationship. Any such construction, warranty or service disputes shall be handled by the Buyer and its counsel at the expense of the Seller; provided, however, that the Buyer and its counsel shall act in a manner consistent with a duty to protect the Seller's interests as if they were the Buyer's own interests and shall keep the Seller reasonably informed of the status of any such disputes. If the Seller fails to notify such Buyer Indemnified Party of its election within the applicable response period, then the Seller shall be deemed to have elected not to control the defense of such Action or Buyer Claim. If the Seller elects to assume the defense of such Action or Buyer Claim, the Buyer Indemnified Party shall have the right to employ separate counsel and participate in the defense of such Action or Buyer Claim, but the fees and expenses of such counsel shall be at the expense of such Buyer Indemnified Party unless (A) the named parties in such Action or Buyer Claim (including any impleaded parties) include both such Buyer Indemnified Party and the Seller, and such Buyer Indemnified Party shall have been reasonably advised by such counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Seller, (B) such Buyer Indemnified Party has been reasonably advised by counsel that representation by the Seller is inappropriate in light of an actual or potential conflict of interest between them, or (C) such Buyer Indemnified Party has reasonably determined that Losses that may be incurred may exceed either individually, or when aggregated with other Buyer Claims, the Maximum Indemnity Amount (in which case, the Seller shall not have the right to control the defense of such Action or Buyer Claim on behalf of such Buyer Indemnified Party, it being understood, however, that the Seller shall not, in connection with such Action or Buyer Claim, be liable for the fees and expenses of more than one such separate firm of attorneys (in addition to any local counsel) and that all such fees and expenses shall be reimbursed as they are incurred).
(c) If the Seller does not control the defense of any Action or Buyer Claim, then the Buyer Indemnified Party may settle such Action or Buyer Claim only with the written consent of the Seller (not to be unreasonably withheld or delayed). If the Seller elects to control the defense of any Action or Buyer Claim, then it will not consent to the entry of judgment or compromise or settle such Action or Buyer Claim without the consent of the Buyer Indemnified Party (not to be unreasonably withheld or delayed).
Appears in 1 contract
Samples: Purchase Agreement (Emcor Group Inc)
Indemnification by Seller. Seller shall hereby agrees to indemnify and hold harmless Purchaser Purchaser, its distributors and shall reimburse Purchaser for their dealers, and as to each of those parties, their respective shareholders, directors, officers, principals, agents and employees, as now and hereafter constituted, from and against any and all loss, liability, damage (including any punitive or exemplary damages), cost and expense of every kind or character (including but not limited to counsel fees and legal expenses) which any or all of them may incur, suffer or be required to pay by reason of any claim, damagesuit, expense (includingdemand, without limitation, costs proceeding or other action that may be brought against any one or more of investigation and defense and reasonable attorney's fees) or diminution of value (collectively, "Damages") them arising from or in connection with:
(a) any inaccuracy related in any way to the failure or alleged failure of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant a Product Unit to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty (for purposes of this clause (a), each schedule and exhibit to this Agreement shall be deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement made by it under this Agreement;
(c) any operations or business conducted, commitment made, service rendered or condition existing or any action taken or omitted by or on behalf of Seller, except for any claims for which Purchaser is required to indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) in connection with any of the transactions contemplated herein; and
warranties, representations, covenants or agreements of Seller contained in this Agreement (e) including but not limited to the provisions of Paragraphs 2, 8, 9 and 11 hereof), whether or not caused or occasioned by, or alleged to be caused or occasioned by, any act, omission, fault or negligence of Seller or of anyone acting on Seller's failure to comply behalf or with its consent. In the "Bulk Sales Laws" under the Uniform Commercial Code; providedevent that any such claim, howeversuit, demand, proceeding or other action shall be brought, Seller covenants that (i) upon notice from Purchaser, Seller shall have no obligation defend such claim, suit, demand, proceeding or action (or, if applicable, Seller shall cause it to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (iibe defended by Seller's insurer) at Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration's sole cost and expense, and (iii) Seller shall have no obligation keep Purchaser fully advised of the continuing status of each such defense. The provisions of this Paragraph 14 shall remain and continue in effect after the term of this Agreement. This indemnification shall not apply to indemnify Purchaser for any claims made and/or causes of action which can be demonstrated to have been directly caused by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date.gross negligence or willful tortious conduct
Appears in 1 contract
Samples: Purchase Agreement (Code Alarm Inc)
Indemnification by Seller. From and after the Closing, Seller shall indemnify and hold harmless Purchaser each of Buyer and shall reimburse Purchaser for any loss, liability, claim, damage, expense (including, without limitation, costs of investigation its Affiliates and defense their respective Representatives and reasonable attorney's fees) or diminution of value their respective successors and assignees (collectively, "Damages"the “Buyer Indemnitees”) arising from or in connection withand against any and all Losses resulting from:
(a) 9.1.1 any inaccuracy in breach of any of the representations and warranties of Seller in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, or any actions, omissions or state of facts inconsistent with any such representation or warranty made by Seller in Article 3 or by Marfrig in Section 11.18.2 (determined, for the purposes of this clause (a)determining whether such breach has occurred and the applicable amount of Losses in respect of such breach, each schedule and exhibit without regard to this Agreement any qualification or exception contained therein relating to “material,” “materiality,” “Material Adverse Effect” or any similar qualification or standard, provided that the foregoing shall be deemed a not apply to the scheduling or listing requirements of any representation and warrantyor warranty made by Seller in Article 3);
(b) 9.1.2 any failure of Seller or Marfrig to perform any covenant or agreement hereunder that is required to be performed by Seller to perform or comply with any agreement made by it under this AgreementMarfrig;
(c) 9.1.3 any operations or business conductedCovered Taxes, commitment made, service rendered or condition existing or other than any action taken or omitted by or on behalf of Seller, except for any claims Taxes for which Purchaser Buyer is required to indemnify Seller pursuant to Indemnitees under Section 7.2 herein9.2.2;
(d) any claim by any person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such person with Seller (or any person acting on its behalf) 9.1.4 the legal proceedings listed in connection with any Section 9.1.4 of the transactions contemplated herein; andDisclosure Schedule (the “Specified Legal Proceedings”);
9.1.5 any liabilities (ewhether contingent or actual) Seller's failure with respect to comply with Service Providers who provide services to the "Bulk Sales Laws" under the Uniform Commercial Code; provided, however, that (i) Seller shall have no obligation Korean Business on or prior to indemnify Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such event, for the full amount of such Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed the Purchase Consideration, and (iii) Seller shall have no obligation to indemnify Purchaser for any claims made by Purchaser under this Section 7.1 after twenty four (24) months after the Closing Date, which liabilities arose, or the basis for which arose, prior to or at the Closing; or
9.1.6 any liabilities (whether contingent or actual) to the extent relating to the Excluded Business.
Appears in 1 contract