Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them: (i) resulting from or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof; (ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or (iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii). (i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below: (A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and (B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed. (ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000. (iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Brooks Automation Inc), Interest for Stock Purchase Agreement (Brooks Automation Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowSellers each agree that they will each indemnify, each of the Sellers, jointly and severally agrees to defend, indemnify protect and hold harmless Buyer's Indemnified Persons Purchaser and its officers, shareholders, directors, divisions, subdivisions, affiliates, subsidiaries, parent, agents, employees, legal representatives, successors and assigns, as applicable, from and against all Losses directly claims, damages, actions, suits, proceedings, demands, assessments, adjustments, penalties, costs and expenses whatsoever (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) whether equitable or indirectly incurred by legal, matured or sought contingent, known or unknown to be imposed upon any of them:
(i) resulting from Sellers, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising out of occurrences prior to, at, or after the date of this Agreement, as a result of or incident to: (a) any breach of any of of, misrepresentation, untruth or inaccuracy in the representations and warranties by Sellers, set forth in this Agreement or warranties made by in the Company, Sellers or any of them in or pursuant Schedules attached to this Agreement or in the Collateral Documents; (b) nonfulfillment or nonperformance of any agreement, document covenant or instrument executed and delivered pursuant hereto condition on the part of Sellers made in this Agreement or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations Collateral Documents and warranties to be performed by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" Sellers before or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except (c) the imposition upon, claim against or payment by Purchaser of any liability or obligation of Sellers other than the Assumed Liabilities; (d) violation of the requirements of any governmental authority relating to the reporting and payment of federal, state, or other income tax of Sellers arising or accrued prior to the Closing Date; (e) any claim by a third party that, if true, would mean that a condition for indemnification set forth in subsections (a), (b), (c) or (d) of this Section 9.1 of this Agreement has occurred; and (f) any claim based upon or action brought against Purchaser or any of its officers or directors as a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence result of any action brought on the date when such covenant or agreement should have been performedbehalf of any shareholder of MSI.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.;
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mace Security International Inc), Asset Purchase Agreement (Mace Security International Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowThe Sellers agree that they will -------------------------- indemnify, each of the Sellers, jointly and severally agrees to defend, indemnify protect and hold harmless Buyer's Indemnified Persons Eastern and its officers, shareholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, legal representatives, successors and assigns from and against all Losses directly claims, damages, actions, suits, proceedings, demands, assessments, adjustments, penalties, costs and expenses whatsoever (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) whether equitable or indirectly incurred by legal, matured or sought contingent, known or unknown to be imposed upon any of them:
(i) resulting from such Seller, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising out of occurrences prior to, at, or after the date of this Agreement, from: (a) any breach of any of of, misrepresentation in, untruth in or inaccuracy in the representations or and warranties made by the CompanySeller, Sellers set forth in this Agreement or any of them in or pursuant the Schedules attached to this Agreement or in the Collateral Documents; (b) nonfulfillment or nonperformance of any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement condition on the part of a Seller made in this Agreement and to be performed by the Company, the Sellers, Sellers before or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except (c) violation of the requirements of any governmental authority relating to the reporting and payment of federal, state, local or other income, sales, use, franchise, excise or property tax liabilities of the Companies arising or accrued prior to the Closing Date; (d) any violation of any federal, state or local "anti-trust" or "racketeering" or "unfair competition law", including, without limitation, the Xxxxxxx Act, Xxxxxxx Act, Xxxxxxxx Xxxxxx Act, Federal Trade Commission Act, or Racketeer Influenced and Corrupt Organization Act; and (e) any claim by a third party that, for any claim based upon if true, would mean that a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims condition for indemnification set forth in subsections (a), (b), (c) or other recourse or legal action against Peninsula under (d) of this Article 7 shall be limited exclusively to the assets Section 9.1 of Peninsula and to the assets held pursuant to the Escrow this Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationhas occurred.
Appears in 2 contracts
Samples: Stock and Partnership Interest Purchase Agreement (Eastern Environmental Services Inc), Stock Purchase Agreement (Eastern Environmental Services Inc)
Indemnification by Sellers. (a) Subject Notwithstanding anything to the limitations contrary in paragraph (b) belowARTICLE 7, each of the Sellers, Sellers shall jointly but not severally indemnify EOIR and severally agrees to defend, indemnify the Buyer and hold them harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from all Taxes (or arising out the non-payment thereof) of EOIR for all taxable periods ending on or before the day of the Closing; (ii) any and all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which EOIR is or was a member on or prior to the Closing pursuant to Treasury Regulation ss.1.1502-6 or any corresponding provision of state, local, or foreign law or regulation; (iii) any and all Taxes of any Person (other than EOIR) imposed on EOIR as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing; (iv) any Tax that relates to any breach of a representation or warranty made by Sellers in SECTION 2.12 hereof; and (v) any Tax that is attributable to any failure of the representations or warranties made by the CompanySellers to perform any covenant, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification obligation of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to persons under this Agreement; or
(iii) resulting from or arising out of any claim PROVIDED, HOWEVER, that, with respect to Taxes described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under in clauses (i) and ), (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) belowabove, Sellers shall be jointly and severally liable only to the extent that such Taxes are in excess of the amount, if any, reserved for such Taxes on the Financial Statements as such reserve is adjusted for the amount passage of such claim up to a maximum of $8,000,000.
(iii) All claims for time through the Closing in accordance with EOIR's past custom and practice in filing its Tax Returns. Sellers' indemnification or other recourse or legal action against Peninsula obligation under this Article 7 SECTION 4.3(A) shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability limitations set forth in connection with such claims for indemnificationSECTION 7.6.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Technest Holdings Inc), Stock Purchase Agreement (Markland Technologies Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowterms and conditions of this Article XI and except as set forth on Schedule 11.2, each from and after the Effective Time, Sellers shall indemnify, defend and hold harmless, solely out of the SellersIndemnification Escrow Amount, jointly Buyer and severally agrees to defendBuyer’s Affiliates (including without limitation the Company Entities after the Closing), indemnify directors, officers, employees, agents, and hold harmless Buyer's Indemnified Persons stockholders and successors and assigns (collectively, “Buyer Indemnitees”) from any and against all Losses directly or indirectly incurred by such Persons arising out of or sought relating to be imposed upon any of them:
or resulting from: (i) resulting from any inaccuracy or arising out of any breach of any representation or warranty of the representations or warranties made by the Company, Sellers or any of them Company contained in or pursuant to this Agreement or in any agreement, document certificate delivered by or instrument executed on behalf of Company pursuant to Sections 7.1 and delivered pursuant hereto or in connection 7.2 (A) on and as of the date of this Agreement with the Closing; provided, that for same effect as though made on and as of the purpose date of this Section 7.2Agreement (other than any such representation or warranty that speaks as of a specific date or time other than the date of this Agreement), (B) on and as of the Closing Date with the same effect as though made on and as of the Closing Date (other than any qualification such representation or warranty that speaks as of such representations a specific date or time other than the date of this Agreement or the Closing Date), or (C) on and warranties by reference to as of the materiality date or time when made, in the case of matters stated thereinany representation or warranty that speaks as of a specific date or time other than the date of this Agreement or the Closing Date, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach by Company of any covenant or agreement made to be performed by the Company, the Sellers, it (or any of them other Company Entity) pursuant to this Agreement; or
, other than Post-Closing Obligations, (iii) resulting from or arising out any breach by Sellers and/or the Sellers’ Representative after the Closing, of any claim described of their respective Post-Closing Obligations, (iv) any and all income Taxes imposed on SCHEDULE 7.2(a)(iiiany Company Entity attributable to any Pre-Closing Tax Period, (v) any and all Taxes imposed on any Company Entity attributable to any position subject to a Tax Opinion Indemnification, and (vi) the matters set forth on Schedule 11.2(a)(vi) (subject to the limitations set forth therein).
(ib) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts From and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above rights of Buyer Indemnitees to indemnification under this Article XI shall commence constitute the sole and exclusive remedy of Buyer Indemnitees for any breach by any of the Company Entities of any provision of this Agreement, and no claim may be asserted nor any action commenced against Company under Section 11.2(a) unless an Indemnification Notice has been delivered to the Sellers’ Representative by Buyer (on behalf of Buyer Indemnitees) on or prior to the date when such on which the representation, warranty, covenant or agreement should on which such claim or action is based ceases to survive as set forth in Section 11.1, regardless of whether the subject matter of such claim or action shall have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreementoccurred before such date; provided, however, that the foregoing limitation shall not apply to Buyer Indemnitees may pursue specific performance and other equitable remedies for any claim matter that is indemnifiable under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,00011.2(a)(iii).
(iiic) All claims Subject to the limitations contained herein, any Losses incurred as a result of any matter for which indemnification or other recourse or legal action against Peninsula is required under this Article 7 Section 11.2 shall be limited exclusively to the assets of Peninsula Indemnification Escrow Amount then remaining in the Escrow Account and not previously distributed pursuant to the assets terms of the Escrow Agreement and no indemnification pursuant to Section 11.2 shall be payable other than from the then remaining Indemnification Escrow Amount. From and after the Closing, the Indemnification Escrow Amount held pursuant to the Escrow Agreement shall constitute the sole and exclusive remedy and source of payment for all Buyer Indemnitees’ Losses and claims related to this Agreement, including any amounts payable by the Sellers’ Representative pursuant to Section 2.13, other than for fraud.
(subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements d) Buyer shall not be amended so entitled to indemnification under Section 11.2(a) in respect of the amount of any liabilities or assets of any of the Company Entities to the extent that the amount of such liabilities or assets are included and reflected with reasonable specificity in the calculation of the final Adjusted Net Working Capital as finally determined under the procedures set forth in Section 2.13 or are specifically excluded pursuant to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (iig) without Buyer's consent. The Buyer hereby unconditionally releases of the general and limited partners definition of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.Corporate Adjusted Current Liabilities
Appears in 2 contracts
Samples: Contribution and Merger Agreement, Contribution and Merger Agreement (American Renal Associates LLC)
Indemnification by Sellers. (a) Subject to the limitations set forth in paragraph Section 10.4 hereof, (i) with respect to (a) and (b) below, each of the Sellers, jointly and (ii) with respect to (c), (d) and (e) below, each of Joseph, Karin, Xxxxxx and LUK-Flats, hereby agrees, independently and severally agrees and not jointly, to defend, indemnify and hold harmless Buyer's Indemnified Persons , and each of its respective stockholders, Affiliates, successors, assigns, officers, directors, employees, agents and representatives, from and against any and all Losses directly out-of-pocket liabilities, losses, damages, claims, obligations, fees and expenses (including reasonable attorney's fees), but excluding incidental, consequential or indirectly incurred punitive damages (collectively, "Losses") which any of them may sustain by reason of:
(a) the inaccuracy of, or sought failure to comply with, or the existence of any facts resulting in the inaccuracy or breach of, any of the warranties or representations, or nonfulfillment of any of the covenants or agreements, of each such Seller contained in this Agreement, without giving effect to the Bring Down Certificate, or any other delivery hereunder, unless specifically waived by Buyer in writing, the Transaction Documents and/or in any agreement or document delivered pursuant hereto, each Seller to be imposed upon independently and severally, and not jointly, solely responsible for its own representations, warranties and covenants; or
(b) with respect to each such Seller independently and severally, and not jointly, any and all actions, suits, proceedings, claims, demands, assessments and judgments incident to any of them:the foregoing; or
(i) any Buyer Tax Liability resulting from the Companies' failure to pay the Companies' and Subsidiaries' 2001 Taxes prior to Closing and/or (to the extent not previously paid) to provide for or accrue (excluding amounts provided for or accrued as deferred taxes) sufficient amounts in the most recent Audited Statements to satisfy the Companies' and Subsidiaries' 2001 Tax Liabilities (excluding any 2001 Tax Liabilities arising out of from any breach of any of the representations or warranties subsequent adjustments made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference taxing authority to the materiality of matters stated therein, 2001 Tax Returns) and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out one-half (1/2) of any breach of any covenant civil penalty (including interest charges, if any) assessed against the Companies or agreement made by the Company, the Sellers, or any of them Subsidiaries pursuant to this Agreement1998 Forms W-2G, notice number 972CG dated August 8, 2000, notice dated April 9, 2001, notice number CP 504 dated May 14, 2001 and notice dated Xxxxx 00, 0000 (xx disclosed on SCHEDULE 4.13); or
(iiid) resulting from or arising out of any claim described by any Person (other than by Xxxxxx X. XxXxxxxx pursuant to his employment agreement with the Companies) 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 Sellers (or any Person acting on SCHEDULE 7.2(a)(iii).their behalf) in connection with any of the transactions contemplated hereby; or
(ie) The any and all Pre-Closing Tax Liabilities for which Sellers have responsibility pursuant to Section 9.3 hereof. Notwithstanding anything to the contrary contained herein, Sellers shall have no liability under paragraph (a) unless one obligation to indemnify Buyer or more hold Buyer harmless for any Loss sustained by Buyer resulting from imperfections or defects in title in the real property being acquired as part of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount transaction hereunder for which the Sellers may be liable Buyer intends to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; providedobtain title insurance, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula unless and to the assets held pursuant to the Escrow Agreement extent such Loss results from an act or omission of Sellers that constitutes a breach of a representation or warranty of Sellers (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into other than a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.breach of
Appears in 1 contract
Samples: Stock Purchase Agreement (Magna Entertainment Corp)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the SellersSellers agree, jointly and severally agrees severally, to defend, indemnify and hold harmless Buyer's Indemnified Persons from , OPKO, their Affiliates and their respective directors, officers, employees and agents from, against all Losses directly or indirectly incurred by or sought to be imposed upon any of themand in respect of, the full amount of:
(i) resulting (A) any and all actions, suits, proceedings, demands, liabilities, damages, claims, deficiencies, fines, penalties, interest, assessments, judgments, losses, Taxes, costs and expenses, including, without limitation, reasonable fees and disbursements of counsel (collectively, the “Indemnified Losses”) arising from or arising out of in connection with any breach or violation of any of the representations or and warranties made by the Company, Sellers or any of them contained in or pursuant to this Agreement or in (B) any agreement, document or instrument executed and delivered pursuant hereto all Indemnified Losses arising from or in connection with any breach or violation of the Closing; provided, that for covenants or agreements of any of the purpose of Sellers or the Company contained in this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofAgreement;
(ii) resulting from any and all Indemnified Losses for Taxes attributable to all Tax years or arising out of any breach of any covenant portions thereof ending on or agreement made by prior to the Closing Date imposed on the Company, as well as deferred taxes in connection with the operation of the business prior to Closing, all of which shall remain the sole responsibility of Sellers, or any of them pursuant to this Agreement; or;
(iii) resulting from any and all Taxes related to or arising out from the sale and transfer of shares contemplated hereby by reason of any claim described on SCHEDULE 7.2(a)(iiiLiability of the Company or its shareholders for such Taxes as assessed by any taxing authority against Seller(s)., and/or the Company either before or after the Closing Date;
(iiv) The Sellers shall have no liability under paragraph any and all Indemnified Losses for failure to comply prior to the Closing Date with the terms of any Laws relating to employees or employment practices or social security;
(av) unless one any and all Indemnified Losses related to or more arising from the termination of employment prior to or following the Closing Date of any employees of the Buyer's Company listed on Schedule 6.4(a)(v);
(vi) any and all Indemnified Persons gives written notice Losses related to or arising from any products delivered by the Company prior to the Sellers asserting a claim for LossesClosing Date, including reasonably detailed facts and circumstances pertaining theretowithout limitation, before Indemnified Losses for product recalls, product defects, warranty claims, personal injury or death;
(vii) any failure by the expiration Company to obtain the product registrations set forth on Schedule 4.24 within nine months of Closing, which shall be indemnified in the amount as set forth on Schedule 4.24 as provided for in Section 4.24(b) above;
(viii) the failure by the Company to obtain registration of the period set forth below:three “Exakta” marks within thirty six months of Closing, which shall be indemnifiable in the amounts provided for in Section 4.25(a);
(ix) any and all Indemnified Losses (A) for claims under clauses (i) and (ii)related to or arising from a violation of any applicable Environmental Law, until with respect to any property owned, controlled or utilized by the earlier of one (1) year after Company or its Affiliates, prior to the Closing Date Date;
(x) any and all Indemnified Losses not reserved for on the Closing Financial Statements related to the business or operations of the date of release of Buyer's audited financial statements for Company prior to the fiscal year ended September 30, 2000Closing Date; and
(Bxi) for claims under clause (iii), a period any and all Accounts Receivable outstanding as of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then which are not collected by the period above shall commence on the date when such covenant or agreement should have been performedCompany as provided for in Article 4.29 above.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject Notwithstanding the Closing, and regardless of any investigation made at any time by or on behalf of Purchaser or any information Purchaser may have, but subject to the limitations in paragraph (b) belowterms of this Article X, each of the Sellers, Seller jointly and severally (except with respect to any misrepresentation or omission with respect to Sections 4.02, 4.05 and Section 4.12 and the third sentence of Section 4.04 as they relate to an individual Seller and not the Company) which shall be several and not joint) agrees to defend, indemnify and to hold Purchaser, its shareholders, officers, directors, and employees (the "Indemnified Purchaser Parties") harmless Buyer's Indemnified Persons from and against all Losses directly and in respect of any losses (including lost revenues), damages, costs, expenses (including costs of investigations and reasonable attorney fees arising out of Third Party Claims), claims, suits, demands, judgments and diminutions in value suffered or indirectly incurred (each a "Loss" and collectively "Losses") by or sought to be imposed upon Purchaser resulting from any of themthe following; provided, however that for purposes of this Article X the Losses of Purchaser resulting from the matters referred to in clause (i) or clause (iv) below shall be the amount of such Losses multiplied by the Purchased Percentage:
(i) resulting from Any obligation or arising out of any breach of any liability of the representations Company for Taxes, whether or warranties made by not known or asserted at or prior to the CompanyClosing, Sellers or any of them to the extent that such liability did not result in or a reduction in the Purchase Price at the Closing pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof2.03 hereof;
(ii) resulting from Any misrepresentation or arising out breach of warranty of the Company or any Seller in this Agreement, the Schedules or Exhibits hereto, or the Escrow Agreement, or in any closing certificate delivered by the Company or any Seller to Purchaser pursuant to Article VII hereof;
(iii) Any breach or non-fulfillment of any covenant or agreement made by on the Company, part of the Sellers, Company or any of them pursuant Seller under this Agreement to this Agreement; orbe performed on or following the Closing Date;
(iiiiv) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no Any and all amounts owed to Bay Area Cellular Telephone Company which are not included as a liability under paragraph (a) unless one or more of in the Buyer's Indemnified Persons gives written notice Working Capital Adjustment that related to the Sellers asserting a claim for Lossesperiod prior to the Closing Date, including reasonably detailed facts and circumstances pertaining thereto, before amounts payable in respect of interconnect fees (the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii"BAC Obligation"), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iiiv) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula costs and to the assets held pursuant to the Escrow Agreement expenses (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery including reasonable attorneys' fees) incurred by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability Purchaser in connection with such claims for indemnificationany action, suit, proceeding, demand, assessment or judgment incident to any of the matters Purchaser is indemnified against by the Company and the Sellers in this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Dobson Communications Corp)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowother provisions of this Article VIII, each of from and after the SellersClosing, Sellers hereby agree to jointly and severally agrees to defend, indemnify and hold Purchaser, its Subsidiaries, their respective successors and permitted assigns and its and their Representatives (collectively, the “Purchaser Indemnified Parties”) harmless Buyer's Indemnified Persons from and against any and all Losses directly or indirectly incurred by or sought to be imposed upon any of themlosses, Liabilities, obligations and damages (individually, a “Loss” and, collectively, “Losses”) for:
(i) resulting from any inaccuracy in or arising out of any breach of any of the representations or warranties made of Sellers contained in Article III (other than the representations and warranties that relate specifically to a Seller contained in Section 3.1(a), Section 3.2, Section 3.3, Section 3.4 and Section 3.5) or in any certificate or instrument delivered by the Company, or on behalf of Sellers or any of them in or the Company pursuant to this Agreement as of the date that such representation or in any agreement, document warranty was made or instrument executed as if such representation or warranty was made on and delivered pursuant hereto or in connection with as of the Closing; provided, that Closing Date (except for the purpose of this Section 7.2, any qualification of such representations and warranties by that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofspecified date);
(ii) resulting from or arising out of those matters set forth on Schedule 8.2(a)(ii);
(iii) Company Taxes;
(iv) Transaction Expenses; and
(v) any breach of non-fulfillment of any covenant covenant, agreement or agreement made obligation to be performed by the Company, the Sellers, or any of them Sellers pursuant to this Agreement; or.
(iiib) resulting Subject to the other provisions of this Article VIII, from or arising out of and after the Closing, each Seller shall severally, and not jointly, indemnify and hold the Purchaser Indemnified Parties harmless from and against any claim described on SCHEDULE 7.2(a)(iii).and all Losses for:
(i) The Sellers shall have no liability under paragraph (a) unless one any inaccuracy in or more breach of any of the Buyer's Indemnified Persons gives written notice representations and warranties of such Seller contained in Section 3.1(a), Section 3.2, Section 3.3, Section 3.4 and Section 3.5 or in any certificate or instrument delivered by or on behalf of such Seller pursuant to the Sellers asserting a claim for Lossesthis Agreement, including reasonably detailed facts and circumstances pertaining thereto, before the expiration as of the period set forth below:
(A) for claims under clauses (i) date that such representation or warranty was made on and (ii), until the earlier as of one (1) year after the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or the date breach of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iiiwhich will be determined with reference to such specified date), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.;
(ii) The maximum amount for which the Sellers may any breach or non-fulfillment of any covenant, agreement or obligation to be liable to all Buyer's Indemnified Persons performed by such Seller pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Tetra Technologies Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph other terms and conditions of this Article IX, Sellers (bjointly and severally) below, shall indemnify and defend each of Buyer, Parent and their Affiliates and their respective representatives (collectively, the Sellers“Buyer Indemnitees”) against, jointly and severally agrees to defend, indemnify and shall hold each of them harmless Buyer's Indemnified Persons from and against against, and shall pay and reimburse each of them for, any and all Losses directly incurred or indirectly incurred sustained by, or imposed upon, any Buyer Indemnitees based upon, arising out of, with respect to, or by or sought to be imposed upon any of themreason of:
(i) resulting from any inaccuracy in or arising out of any breach of any of the representations or warranties made by of the Company, Sellers or any of them Company contained in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofAgreement;
(ii) resulting from any breach or arising out non-fulfillment of any breach of any covenant covenant, agreement, or agreement made obligation to be performed by the Company, the Sellers, or any of them Company pursuant to this Agreement;
(iii) any Excluded Liabilities which remain unpaid after Closing and are not adjusted for at the Closing pursuant to Section 1.01(b);
(iv) (A) all Taxes (or the non-payment thereof) of the Company for any Pre-Closing Tax Period, (B) all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company (or any of its respective predecessors) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation §1.1502-6 under the Code or any analogous or similar Law, and (C) any and all Taxes of any Person (other than the Company) imposed on the Company as a transferee or successor, by Contract or pursuant to any Law which Taxes relate to an event or transaction occurring before the Closing;
(v) any failure of the Company to comply with applicable state and local Laws controlling the cultivation, harvesting, production, handling, storage, distribution, sale or possession of cannabis or medical marijuana, including licensing requirements applicable to the Company if and only if (A) such failure was caused by the acts or omissions of any employees or agents of the Company, or (B) such failure was caused by the acts or omissions of any employees or agents of the Buyer or the Parent which were and had been providing services to the Company prior to the Closing, which acts or omissions were approved in advance in writing by any employee or agent of the Company;
(vi) any fraud, intentional or knowing misrepresentation or willful breach by the Company.
(b) Subject to the other terms and conditions of this Article IX, each Seller (severally and not jointly) shall indemnify and defend each of 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, any Buyer Indemnitees based upon, arising out of, with respect to, or by reason of:
(i) any inaccuracy in or breach of any of the representations or warranties of such Seller contained in this Agreement;
(ii) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by such Seller pursuant to this Agreement;
(iii) any failure of the Company to comply with applicable state and local Laws controlling the cultivation, harvesting, production, handling, storage, distribution, sale or possession of cannabis or medical marijuana, including licensing requirements applicable to the Company if and only if such failure was caused by the acts or omissions of any agents or the employees of the Buyer or the Parent which were and had been providing services to the Company prior to the Closing, other than such acts or omissions that were approved in advance in writing by an employee or agent of the Company (each, a “Buyer Pre-Closing Claim”);
(iv) all Taxes (or non-payment thereof) of such Seller; or
(iiiv) resulting from any fraud, intentional or arising out knowing misrepresentation or willful breach by such Seller. The indemnification obligations of any claim described on SCHEDULE 7.2(a)(iiiSellers under Section 9.01(a) will be joint and several in all matters related to the Company, and the indemnification obligation of the Sellers under Section 9.01(b) will be several, but not joint. As used in this Agreement, “Losses” means all losses, Liabilities, deficiencies, damages (including consequential damages and lost profits).
, fines, penalties, claims, costs and expenses (including, amounts paid (i) The Sellers shall have no liability pursuant to a judgment (entered into or determined in accordance with, or that is entered into or determined under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting circumstances that do not constitute a claim for Lossesbreach of, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (iithis Agreement), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant compromise or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant settlement entered into in accordance with this Agreement or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable in enforcing any right to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreementindemnification hereunder), court costs and fees (including reasonable legal and accounting fees and disbursements, reasonable witness fees); provided, however, that “Losses” will not include punitive damages, except to the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of extent such claim up punitive damages are payable to a maximum of $8,000,000third party in a claim for which indemnification is permitted hereunder.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the SellersEach Seller, jointly and severally -------------------------- severally, agrees to that he will indemnify, defend, indemnify protect and hold harmless Buyer's Indemnified Persons Eastern and its officers, shareholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, legal representatives, successors and assigns from and against all Losses directly claims, damages, actions, suits, proceedings, demands, assessments, adjustments, penalties, costs and expenses whatsoever (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) whether equitable or indirectly incurred by legal, matured or sought contingent, known or unknown to be imposed upon any of them:
(i) resulting from such Seller, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising out of occurrences prior to, at, or after the date of this Agreement, from: (a) any breach of any of of, misrepresentation in, untruth in or inaccuracy in the representations or and warranties made by the CompanySeller, Sellers set forth in this Agreement or any of them in or pursuant the Schedules attached to this Agreement or in the Collateral Documents; (b) nonfulfillment or nonperformance of any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement condition on the part of a Seller made in this Agreement and to be performed by the Company, the Sellers, Seller before or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except (c) violation of the requirements of any governmental authority relating to the reporting and payment (to the extent payment exceeds $238,000) of federal, state, local or other income, sales, use, franchise, excise or property tax liabilities of the Companies arising or accrued prior to the Closing Date; (d) any violation by Sellers or the Companies of any federal, state or local "anti-trust" or "racketeering" or "unfair competition law", including, without limitation, the Xxxxxxx Act, Xxxxxxx Act, Xxxxxxxx Xxxxxx Act, Federal Trade Commission Act, or Racketeer Influenced and Corrupt Organization Act; and (e) any claim by a third party that, for any claim based upon if true, would mean that a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims condition for indemnification set forth in subsections (a), (b), (c) or other recourse or legal action against Peninsula under (d) of this Article 7 shall be limited exclusively to the assets Section 9.1 of Peninsula and to the assets held pursuant to the Escrow this Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationhas occurred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Eastern Environmental Services Inc)
Indemnification by Sellers. (a) Subject In addition to the limitations other obligations of indemnification contained in paragraph (b) belowthis Agreement, each of the Sellers, jointly and severally agrees (collectively, in their capacities as indemnifying parties, the "Indemnifying Party"), hereby agree, subject to defendthe limitations set forth below, to indemnify Buyer and hold harmless Buyer's Indemnified Persons its Affiliates and their respective directors, officers and employees (including, without limitation, APC and each Subsidiary of APC from and against all Losses directly or indirectly incurred after the Closing) (each in its capacity as indemnified party, an "Indemnitee"), regardless of any investigation conducted by or sought to be imposed upon knowledge obtained by any of them, and hold each of Buyer and such Affiliates and their respective directors, officers and employees harmless, from, against and in respect of any and all Losses arising from or related to any of the following:
(i) resulting from or arising out of any breach of, untruth of or inaccuracy in (or any allegation by any third party of facts which, if true as alleged, would constitute such a breach or inaccuracy in) any representation or warranty made by or on behalf of PHL or either of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement (including, without limitation, the Sellers' Disclosure Letter) or in any agreementClosing Agreement or other document, document instrument or instrument executed and certificate delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofhereto;
(ii) resulting from any breach, non-fulfillment or arising out of any breach violation of any covenant or agreement made by PHL or either of the CompanySellers in this Agreement or in any Closing Agreement or in any document, the Sellers, instrument or any of them certificate delivered pursuant to this Agreement; orhereto;
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).Excluded Liability;
(iiv) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms limitations and conditions set forth elsewhere in this Agreement, any severance due and payable under any APC Plan or APC Benefit Arrangement, Contractual Obligation or Legal Requirement by reason of the Escrow execution and delivery of this Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Closing Agreements dated or the date hereof to assure their proportional contribution up to consummation of the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.transactions contemplated
Appears in 1 contract
Samples: Stock Purchase Agreement (Phoenix Companies Inc/De)
Indemnification by Sellers. (a) Subject From and after the Closing, subject to the limitations in paragraph other terms and conditions of this Section 6, Xxxxx Xxx, Xxxxx Xxxx, Xxxxxxx Xxxx and Kingsoon Ong (btogether, the “Controlling Members”) below, each of the Sellersshall, jointly and severally agrees to severally, defend, reimburse, indemnify and hold harmless Buyer's Buyer and its respective Affiliates, shareholders, members, directors, managers, officers, employees and agents (each such Person being referred to as a “Seller Indemnified Persons from Party”; and collectively, the “Seller Indemnified Parties”), against and in respect of any and all Losses directly incurred or indirectly incurred sustained by, or imposed upon, any Seller Indemnified Parties based upon, arising out of or by or sought to be imposed upon any of themreason of:
(i) resulting from or arising out the failure of any breach representation or warranty of any of the representations or warranties made by the Companya Seller contained in this Agreement, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that except for the purpose of this Section 7.2, any qualification of such representations and warranties set forth in Section 4.3(b), to be true, correct and complete as of the date such representation or warranty was made and as of the Closing Date (other than a representation or warranty which, by reference to its express term, is made solely as of a specified date, the materiality of matters stated therein, and any limitations failure of such representations representation or warranty to be true, correct and warranties complete as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofsuch specified date);
(ii) resulting from or arising out of any breach or non-performance of any covenant or agreement made by of a Seller set forth in this Agreement;
(iii) any Indebtedness for borrowed money of the Company, the Sellers, Company or any of them pursuant the Transaction Expenses, in each case to this Agreementthe extent not paid at Closing;
(iv) the failure of any representation or warranty of Sellers contained in Section 4.3(b) (without giving effect to any disclosures applicable thereto in the Disclosure Schedules) to be true, correct and complete as of the date such representation or warranty was made and as of the Closing Date; or
(iiiv) resulting from or arising out of any claim the matters described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more in Section 4.10 of the Buyer's Indemnified Persons gives written notice to Disclosure Schedules, the Sellers asserting a claim for Losses, including reasonably detailed facts State Tax Liens and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performedOutstanding Payables.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowprovisions of Article XII and Section 13.4 hereof, each of the Sellers, jointly and severally agrees severally, agree to defend, indemnify and hold harmless Buyer's Indemnified Persons the Purchaser, its affiliates and assigns and their respective directors, officers, employees and agents, as provided in this Article XIII, from and against all Losses directly any loss, damage, fine, cost or indirectly expense, including counsel fees and disbursements, reasonably incurred by in connection with the investigation, defense or sought to be imposed upon settlement of any of themclaim (collectively, a "Loss"), arising out of:
(ia) any and all liabilities of the Company of any kind, nature or description, absolute or contingent, which arise with respect to or relate to any period or periods ending on or prior to the Closing Date, or exist as against the Company prior to or on the Closing Date or thereafter come into being or arise by reason of any state of facts existing, or any action taken or failure to take any required action, on or prior to the Closing Date, including without limitation any and all liabilities of the Company related to the Bull Litigation and any severance or other termination benefits relating to, resulting from or arising out of any breach of any in respect of the representations or warranties made by the Company, Sellers termination of Xxxx Xxxxx or any other employee of them the Company prior to the Closing Date ("Severance Liability"), except to the extent that the same (A) were fully provided for (and accrued and applied as a current liability) in the Balance Sheet, or pursuant to (B) were disclosed in this Agreement or in any agreement, document or instrument executed and delivered pursuant Schedule hereto or any document referred to in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow AgreementSchedule; provided, however, that the foregoing limitation exceptions contained in clauses (A) and (B) shall not apply to the Bull Litigation or to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.Severance Liability;
(iiib) All claims for indemnification any breach of warranty or misrepresentation by any of the Sellers under Article III of this Agreement, or any misrepresentation in or omission from any certificate or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively instrument delivered to the assets of Peninsula and to Purchaser by the assets held Company or the Sellers pursuant to this Agreement or nonfulfillment of any covenant or agreement on the Escrow Agreement (subject to part of the Company or the Sellers under the terms of the Escrow this Agreement); providedand
(c) all actions, that the McIntyres suits, proceedings, claims, demands, assessments, penalties and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up judgments incident to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationforegoing.
Appears in 1 contract
Indemnification by Sellers. From and after the Closing and subject to the provisions of this Article IX and Section 11.1, the Sellers jointly and severally agree to indemnify, defend and hold harmless the Buyer Indemnified Parties from and against any and all Liabilities, demands, claims, suits, actions, or causes of action, losses, costs, expenses, damages and judgments, whether or not resulting from third party claims, (including reasonable fees and expenses of attorneys and accountants and costs of investigation ) (collectively, “Damages”) incurred by any Buyer Indemnified Party and arising out of, relating to or resulting from (a) Subject the failure of any representation or warranty set forth in Section 3.6 (Absence of Undisclosed Liabilities; Special Purpose Entities) (disregarding any materiality qualifier set forth in Section 3.6(a)) or 3.9 (Employee Benefit Plans; ERISA) to the limitations in paragraph (b) below, each be true and correct as of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection Effective Time with the Closing; provided, that for the purpose of this Section 7.2, any qualification of same effect as though such representations and warranties by reference had been made on and as of such time (except to the materiality extent any such representation and warranty expressly speaks only as of matters stated thereina specific date, in which case as of such earlier date), (b) the failure of any representation or warranty set forth in Section 3.1(b), 3.1(c), 3.16(a) or 3.16(c) to be true and any limitations correct as of the Effective Time with the same effect as though such representations and warranties had been made on and as being "of such time (except to the knowledge of" or "known to" or words extent any such representation and warranty expressly speaks only as of similar effecta specific date, shall be disregarded in determining any inaccuracywhich case as of such earlier date), untruth, incompleteness or breach thereof;
(iic) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period Seller set forth below:
(A) in Article I or of any covenant or agreement of any Seller set forth in this Agreement that contemplates or provides for claims under clauses (i) and (ii)any rights, until the earlier obligations or actions of one (1) year any Party after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(Bd) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performedExcluded Liability.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Transaction Agreement (Affordable Residential Communities Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowFrom and after Closing, ------------ -------------------------- each of the Sellers, jointly and severally agrees to defend, Seller shall indemnify and hold harmless Buyer's Indemnified Persons CCI and its Affiliates, directors, officers, employees, agents and representatives, and any Person claiming by or through any of them, as the case may be, from and against any and all Losses directly and Expenses arising out of or indirectly incurred by or sought to be imposed upon any of themresulting from:
(ia) resulting from Any representations and warranties made by either Seller, any MNH Entity, Xxxxxxxx, Ingersoll or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them Ultimate Equity Holders in or pursuant to this Agreement or in any agreementTransaction Document not being true and accurate in all material respects, document when made or instrument executed at Closing, provided that indemnification under this paragraph is sought within the applicable time periods and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this manner stated in Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof10.5;
(iib) resulting from or arising out of Any failure by either Seller, any breach of any covenant or agreement made by the CompanyMNH Entity, the SellersMNHP, NHA, Meredith, Ingersoll or any of them pursuant the Ultimate Equity Holders to perform in all material respects any of its covenants, agreements, or obligations in this Agreement; orAgreement or in any Transaction Document;
(iiic) resulting from Any indebtedness, liability or arising out of any claim described obligation set forth on SCHEDULE 7.2(a)(iii).
4.6 to the extent not provided for in determining the Purchase Price (either as (i) The Sellers shall have no liability under paragraph (a) unless one or more an inclusion in the consolidated liabilities of the Buyer's Indemnified Persons gives written notice MNH Entities to be deducted pursuant to Section 8.3(b)(i)(A)(I)(x) in determining the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and Purchase Price or (ii) as an inclusion in the Consolidated Current Liabilities to be deducted pursuant to Section 8.3(b)(iv)(E) in determining the Working Capital Adjustment), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(Bd) for claims under clause (iii), a period of five years after The non-delivery or non-obtaining on or before the Closing Date; except thatDate of any Sellers Required Consents to the extent that the aggregate Losses and Expenses arising out of or resulting therefrom, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance together with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the aggregate amount of such claim up to a maximum Losses and Expenses arising out of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, resulting from any personal liability in connection with such claims for indemnification.Section 3.1
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowFrom and after Closing, each of the SellersSeller hereby agrees to, jointly and severally severally, indemnify Buyer and its Affiliates and their respective officers, directors, agents and employees (the “Buyer Indemnified Parties”) against, and agrees to defendhold them harmless from, indemnify and hold harmless Buyer's Indemnified Persons any Loss to the extent such Loss results or arises, whether or not due to a Third-Party Claim, from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of themthe following:
(i) resulting from or arising out any failure of any breach of any of the representations representation or warranties warranty made by the Company, Sellers or any of them in or pursuant to this Agreement or the Ancillary Agreements or a certification required to be delivered hereby or thereby, in any agreementeach case, document or instrument executed to be true and delivered pursuant hereto or in connection with correct as of the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofClosing Date;
(ii) resulting from or arising out any breach by any Seller of any breach of any covenant its covenants or agreement made by agreements contained in this Agreement or the Company, the Sellers, or any of them pursuant to this AgreementAncillary Agreements; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iiiExcluded Liability (collectively, the claims made under clauses (i), (ii) and (iii), “Buyer Claims”).
(ib) The Sellers shall have no liability under paragraph (a) unless one or more Notwithstanding the foregoing, other than in the case of fraud committed by the Sellers, the indemnification in favor of the Buyer's Buyer Indemnified Persons gives Parties contained in Section 13.2(a) above shall be limited to Buyer Claims as to which Buyer has given written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before within the expiration of the applicable time period set forth below:
(A) in Section 13.1, in each case setting forth therein in reasonable detail the basis for claims under clauses (i) and (ii)such Buyer Claim, until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements including a reasonable estimate for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period amount of five years after Losses to the Closing Date; except that, for any claim based upon a covenant or undertaking which extent known by its terms is to be performed after the Closing, then the period above shall commence on the date when Buyer at such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreementtime; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000****CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Asset Transfer Agreement (Vanda Pharmaceuticals Inc.)
Indemnification by Sellers. (a) Subject to the limitations set forth in paragraph (b) belowthis Section 8.2, from and after the Closing, each of the SellersSellers and Holdco (each, an “Indemnifying Party”), jointly and severally agrees (provided, however, with respect to defendany indemnifiable Losses under Section 8.2(a)(i), indemnify Section 8.2(a)(iii), and Sections 8.2(a)(v)-(viii), no Seller shall be liable for greater than his, her or its respective Indemnification Pro Rata Percentage of such Loss, and with respect to any indemnifiable Losses under Section 8.2(a)(ii) and Section 8.2(a)(iv), Sellers shall be liable on a several and not joint basis and no Seller shall be liable for Losses with respect to any breach of any other Seller), shall indemnify, defend and hold harmless Buyer's Buyer and its respective Affiliates (including, following the Closing, the Company), and their respective directors, officers, managers, stockholders, employees, agents and Representatives and their respective heirs, executors, successors and assigns, each in their capacity as such (collectively, the “Indemnified Persons from Parties”) from, against and against in respect of any and all Losses imposed on, sustained, or incurred or suffered by any of the Indemnified Parties, whether in respect of Third Party Claims, claims between any of the parties hereto, or otherwise, directly or indirectly incurred by resulting from, arising out of or sought to be imposed upon any of themrelating to:
(i) resulting from any breach, inaccuracy or arising out failure to be true and correct, of any breach of any of the representations representation or warranties warranty made by the CompanySellers, Sellers Holdco or any of them the Company contained in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose Article III of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofAgreement;
(ii) resulting from any breach, inaccuracy or arising out failure to be true and correct, of any representation or warranty made by such Seller contained in Article II of this Agreement; provided that, for the avoidance of doubt, in no event will any Seller be liable for Losses with respect to any breach, inaccuracy or failure to be true and correct, of any representation or warranty made by any other Seller contained in Article II of this Agreement;
(iii) any breach of any covenant or agreement of the Company contained in this Agreement;
(iv) any breach of any covenant or agreement of a Seller contained in this Agreement; provided that, for the avoidance of doubt, in no event will any Seller be liable for Losses with respect to any breach of any covenant made by any other Seller contained in this Agreement;
(v) any Indebtedness to the extent not paid solely by the Company (or the Sellers or by any of Affiliate of the Company, in each case, on behalf of the SellersCompany) and not taken into account in the Final Purchase Price;
(vi) any Sellers Expenses to the extent not paid solely by the Company (or the Sellers or by any of Affiliate of the Company, in each case, on behalf of the Company) and not taken into account in the Final Purchase Price;
(vii) without duplication (and other than any Taxes to the extent such Taxes were taken into account as a liability in the calculation of Closing Indebtedness or otherwise in the determination of Final Purchase Price pursuant to Section 1.3(d)), any (A) Transfer Taxes for which the Sellers are responsible pursuant to Section 5.15(d); (B) Taxes of Holdco or the Company for a Pre-Closing Tax Period (determined in accordance with Section 5.15(c) for taxable periods including but not ending on the Closing Date); and (C) Taxes imposed on Sellers or any of them the Seller’s Affiliates (other than the Company) for any taxable period (provided that, in the case of Taxes described in this clause (C), solely the applicable Seller shall be liable); and
(viii) the Retained Assets, the Retained Liabilities, and the items set forth on Section 8.2(a)(viii) of the Disclosure Schedule.
(b) Subject to the other limitations set forth in this Article VIII:
(i) for any claims for indemnification pursuant to this Agreement; orSection 8.2(a)(i) or Section 8.2(a)(ii) (other than with respect to claims for breaches of Fundamental Representations or in the case of Fraud), the Indemnified Parties shall be entitled to indemnification, to the extent the aggregate amount of all such Losses exceed one million two hundred thousand dollars ($1,200,000) (the “Deductible”), in which event the Indemnifying Parties shall only pay or be liable for Losses pursuant to Section 8.2(a)(i) or Section 8.2(a)(ii) in excess of the Deductible;
(ii) the maximum aggregate liability of Indemnifying Parties for Losses under Section 8.2(a)(i) or Section 8.2(a)(ii) (other than with respect to claims for breaches of Fundamental Representations or in the case of Fraud), shall not exceed the Indemnity Escrow Amount;
(iii) resulting from or arising out the maximum aggregate liability of any claim described on SCHEDULE 7.2(a)(iiiIndemnifying Party for Losses hereunder shall not exceed their respective Indemnification Pro Rata Percentage of the aggregate Final Purchase Price actually received by Xxxxxx from Buyer hereunder;
(iv) for any claims of indemnification pursuant to Section 8.2(a)(i), Section 8.2(a)(iii), or Sections 8.2(a)(v)-(vii), the Indemnifying Party shall be entitled to recover (A) first, from the Indemnity Escrow Fund pursuant to the terms of the Escrow Agreement until the Indemnity Escrow Fund has been exhausted, (B) second, directly against Holdco, and (C) third, directly against Sellers, in accordance with their respective Indemnification Pro Rata Percentages;
(v) for any claims of indemnification pursuant to Section 8.2(a)(viii), the Indemnifying Party shall be entitled to recover (A) first, directly against Holdco, and (B) second, directly against Sellers, in accordance with their respective Indemnification Pro Rata Percentages; provided that, notwithstanding the foregoing, the Indemnifying Party may in its sole discretion, but shall not be obligated to, elect to recover all or a portion of such Losses from Indemnity Escrow Fund pursuant to the terms of the Escrow Agreement until the Indemnity Escrow Fund has been exhausted; and
(vi) no Selling Party shall be liable (A) for any Losses relating to any specific matter to the extent that there is included in the Financial Statements a specific liability or specific reserve for such matter, or (B) for any duplication of amounts taken into account in the Final Purchase Price.
(c) Notwithstanding any provision of this Agreement to the contrary, for purposes of determining the amount of any Losses (and not for purposes of determining whether any breach has occurred), except as set forth in Section 3.6(a) or with respect to the defined term “Material Contract”, any materiality, Company Material Adverse Effect or other similar qualifications or other similar terms or phrases contained or incorporated, directly or indirectly, in any such representation or warranty shall be disregarded and have no effect (as if such standard or qualification were deleted from such representation or warranty).
(id) Notwithstanding anything to the contrary in this Agreement, with respect to any indemnity amounts payable pursuant to Section 8.2(a)(ii) or Section 8.2(a)(iv), the Indemnified Party shall recover from the Indemnifying Party(ies) who is/are liable for such Losses pursuant to Section 8.2(a)(ii) or Section 8.2(a)(iv), and shall not obtain any amounts from the Indemnity Escrow Amount.
(e) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement will limit liability for Fraud.
(f) The Sellers Indemnified Party shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice use its commercially reasonable efforts to the Sellers asserting a claim for mitigate all Losses, including seeking recovery under insurance policies (including, without limitation, the Tail Policy) or indemnity, contribution or other similar agreements for any Losses after becoming aware of any fact, event or circumstances which would reasonably detailed facts and circumstances pertaining thereto, before be expected to give rise to any Losses that are indemnifiable or recoverable hereunder; provided that such commercially reasonable efforts shall not require any Indemnified Party to initiate or prosecute any Proceeding against an insurer. The amount of Losses for which indemnification shall be available pursuant to this Article VIII shall be reduced by (i) any insurance proceeds actually received from a third-party insurer by the expiration Indemnified Party or its Affiliates in connection with the matter giving rise to such Losses (net of the period set forth below:
amount of costs and expenses (Aincluding reasonable attorneys’ fees) for claims of recovery or collection thereof and any applicable deductibles, retentions or similar costs or payments or increased premiums) and (ii) any indemnity or contribution amounts actually received from third parties by the Indemnified Party or its Affiliates in connection with the matter giving rise to such Losses (net of any applicable costs and expenses (including reasonable attorneys’ fees) of recovery or collection thereof) (such net recoveries under clauses (i) and (ii), until “Net Recoveries”). If the earlier Indemnified Party or any of one (1) year its Affiliates actually received a Net Recovery with respect to any Losses after an Indemnifying Party has actually made a payment to the Closing Date Indemnified Party or its Affiliates with respect to such Losses, such Indemnified Party or its Affiliates with respect to such Losses, such Indemnified Party shall promptly pay over to the date of release of Buyer's audited financial statements for the fiscal year ended September 30Indemnifying Party that amount, 2000; and
(B) for claims under clause (iii)if any, a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when that such covenant or agreement should Indemnifying Party would not have been performed.
(ii) The maximum amount for which required to pay to such Indemnified Party or its Affiliate if such Net Recovery had been received prior to such payment by the Sellers may be liable to all Buyer's Indemnifying Party, provided that the Indemnified Persons pursuant to this Article 7 Party shall not be greater than 10% obligated to pay over any such amount in excess of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively the indemnity payment hereunder to the assets of Peninsula and Indemnified Party with respect to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationclaim.
Appears in 1 contract
Samples: Securities Purchase Agreement (Masonite International Corp)
Indemnification by Sellers. (a) Subject to the limitations Except as otherwise expressly provided in paragraph (b) belowthis Article 7, each of the Sellers, Sellers shall jointly and severally agrees to defend, indemnify and hold harmless BuyerSESI and each of SESI's officers, directors, employees, Affiliates, successors and assigns (SESI and such persons, collectively, "SESI's Indemnified Persons Persons"), and shall reimburse SESI's Indemnified Persons, for, from and against all Losses each and every demand, claim, action, loss (which shall include any diminution in value), liability, judgment, damage, cost and expense (including, without limitation, interest, penalties, costs of preparation and investigation, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) (collectively, "Losses") imposed on or incurred by SESI's Indemnified Persons, directly or indirectly incurred by or sought to be imposed upon any of them:
(i) indirectly, relating to, resulting from or arising out of: (a) any inaccuracy in any representation or warranty of Sellers in this Agreement or any certificate, document or other instrument delivered or to be delivered pursuant hereto in any respect whether or not SESI's Indemnified Persons relied thereon or had knowledge thereof or (b) any breach or nonperformance of any covenant, agreement or other obligation of Sellers under this Agreement or any certificate, document or other instrument delivered or to be delivered pursuant hereto; provided, however, that, except for a knowing and intentional breach of any representation or warranty of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference (as to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, which there shall be disregarded in determining any inaccuracyno Minimum Amount), untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (aSection 7.1(a) unless one or more and until the aggregate of all Losses resulting therefrom exceeds $10,000 (the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii"Sellers' Minimum Amount"), until the earlier in which event Sellers shall be liable for all Losses in excess of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended Sellers' Minimum Amount. The indemnification rights provided in this Section 7.1 shall expire on September 30, 2000; and
(B) for claims under clause (iii)2002, a period of five years after unless the Closing Date; except thatparty seeking indemnification shall make its claim therefor on or before September 30, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed2002.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Stock Purchase Agreement (Superior Energy Services Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowconditions and provisions of Section 12.4 and Section 12.5, each of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date, Sellers agree to indemnify, defend and hold harmless Buyer from and against and in any respect of, on a net after-tax basis, any and all Losses, asserted against, resulting to, imposed upon or incurred by Buyer, directly or indirectly, by reason of or resulting from: (a) any failure by Sellers to pay, perform or discharge any Liabilities not assumed by Buyer pursuant hereto; (b) the business or operations of the Stations during the period prior to the Closing Date (except that, to the extent Buyer has assumed the Liability for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons Losses pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreementhereto); provided, however, that (i) if the foregoing limitation Class A 100% Payment shall not apply to any claim have been received by Sellers and the Closing for the Class A Stations shall have occurred, Sellers' indemnification obligations under Section 7.2(a) (iii) and, subject to this clause (iiib) below, Sellers shall be jointly and severally liable for with respect to the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 Class A Stations shall be limited exclusively to the assets of Peninsula and period prior to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); providedClass A 100% Payment Date, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases if the general Class B Payment shall have been received by Sellers and the Closing for the Class B Stations shall have occurred, Sellers' indemnification obligations under this clause (b) with respect to the Class B Stations shall be limited partners to the period prior to the Class B Payment Date; (c) any misrepresentation or breach of Peninsula, the representations and warranties of Sellers contained in or agents thereof, their successors and assigns, from made pursuant to this Agreement or any personal liability other Seller Document; (d) any breach by Sellers of any covenants of Sellers contained in connection or made pursuant to this Agreement or any other Seller Document; or (e) the failure of Sellers to comply with such claims for indemnificationthe provisions of any applicable bulk transfer law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach of any of the representations or warranties (other than those in Sections 2.1, 2.2, 2.8, 2.10 and, solely to the extent relating to title, Section 2.11) made by the Company, Sellers or any either of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; providedprovided that, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant of the representations or agreement warranties made by the Company, the Sellers, or any of them Sellers pursuant to this Agreement; orSections 2.1, 2.2, 2.8, 2.10 and, solely to the extent related to title, Section 2.11;
(iii) resulting from or arising out of any claim breach of any covenant or agreement made by Sellers or any of them in or pursuant to this Agreement;
(iv) in respect of any liability or obligation of the Company which any Seller has expressly assumed or for which any Seller has expressly agreed to be responsible;
(v) resulting from or arising out of any liability, payment or obligation arising out of any litigation or similar matter required to be described on SCHEDULE 7.2(a)(iiiSchedule 2.21, except to the extent of reserves with respect thereto on the ------------- Base Balance Sheet;
(vi) resulting from or arising out of the intentional misrepresentation or breach of warranty of the Company or any Seller or any intentional failure of the Company or any Seller to perform or comply with any covenant or agreement of the Company or any Seller, respectively;
(vii) resulting from or arising out of any liability, payment or obligation in respect of any taxes owing by the Company, Sellers or Buyer, as successor to the Company, of any kind or description (including interest and penalties with respect thereto) for all periods, or portions thereof, up to an including the Closing Date, except to the extent of reserves with respect thereto on the Base Balance Sheet;
(viii) resulting from or arising out of any third party action, whether by a governmental authority or other third party for damages, including fines or penalties, or clean-up costs or other compliance costs under any Environmental Law or from the violation of any Environmental Law arising out of the operations of the Company or its former parent corporation on or before the Closing Date;
(ix) resulting from or arising out of any Benefit Plan (as defined in Section 2.17); or
(x) resulting from or arising out of any Third Party Action (including a binding arbitration or an audit by any taxing authority), that it is instituted or threatened against any of Buyer's Indemnified Persons.
(ib) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i), (v), (ix) and (iix) (insofar as a claim under clause (x) relates to any matter included under clause (i), until the earlier (v) or (ix)) of one paragraph (1a) year after above, a period of three (3) years from the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; andDate;
(B) for claims under clauses (iii), (vii), (viii) and (x) (insofar as a claim under clause (x) relates to any matter included under clause (iii), a period (vii) or (viii)) of five years after the Closing Dateparagraph (a) above, for so long as any claim may be made in respect of such matters under any applicable statute of limitations, as it may be extended; and
(C) for claims under clauses (ii), (iv) and (vi) of paragraph (a) above, without limitation as to time; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject From and after the Closing and subject to the limitations in paragraph (b) belowterms and conditions of this Article IX, each of the SellersSeller, jointly severally and severally agrees to defendnot jointly, indemnify shall indemnify, defend and hold harmless Buyer's , Buyer’s Affiliates (which shall include ESC in the event that an Indirect Sale occurs) and the respective officers, directors, employees, successors and permitted assigns of the Buyer or any Affiliate of Buyer (excluding, after the Closing, the Company or any Company Subsidiary) (collectively, the “Buyer Indemnified Persons from Parties”) from, against and against in respect of any and all Losses imposed on, sustained, incurred or suffered by, or asserted against, any Buyer Indemnified Parties, whether in respect of third-party claims, claims between or among the Parties, or otherwise, directly or indirectly incurred relating to, arising out of, resulting from, based upon, with respect to or by or sought to be imposed upon reason of any of themthe following:
(ia) resulting from or arising out of any breach of or inaccuracy in any of the representations or warranties contained in Article III or Article IV of this Agreement (solely as such representations and warranties are made by the Company, Sellers it (or any Affiliate of them it that is also a Seller hereunder) and not, for the avoidance of doubt, as such representations and warranties are made by any other Seller (except as specified in Section 2.9(b)(ii)) or in any closing certificate delivered by such Seller pursuant to this Agreement, or in any Seller Accession Agreement or Indirect Sale Notice and Accession Agreement delivered by such Seller, it being understood that, in each case except with respect to Section 4.3(a), Section 4.3(b) and Section 4.4(a), any qualifications relating to materiality, Material Adverse Effect or similar qualifications contained in such representations and warranties shall be disregarded both for purposes of determining whether such representation or warranty was breached or was inaccurate and for purposes of determining the amount of any Loss resulting therefrom;
(b) any breach of any agreement or covenant made by such Seller (or any Affiliate of it that is also a Seller hereunder) in this Agreement or in any agreement, other document executed or instrument executed and delivered pursuant hereto or in connection with the Closing; providedthis Agreement, that for the purpose of this Section 7.2, including any qualification of such representations Seller Accession Agreement or Indirect Sale Notice and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofAccession Agreement;
(iic) resulting from any Leakage in respect of such Seller or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreementits Related Parties; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Share Purchase Agreement (State Grid Corp of China)
Indemnification by Sellers. (a) Subject to If the limitations in paragraph (b) belowClosing occurs, each of the SellersSellers shall, jointly and severally agrees to defendseverally, indemnify each Business Subsidiary, Purchasers and their respective general partners, limited partners, officers and directors of each of them (in each case, other than the Sellers), in respect of, and hold each of them harmless Buyer's Indemnified Persons from and against any and all Losses directly suffered, incurred or indirectly incurred sustained by or sought to be imposed upon any of them:
them or to which any of them becomes subject, whether or not involving a Third Party Claim, resulting from, arising out of or relating to (i) resulting from or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference of the Sellers contained in this Agreement (including, without limitation, any certificate delivered in connection herewith), without regard to any materiality or Business Material Adverse Effect or, with respect to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to contained in Section 4.11 or the first sentence of Section 4.13 or the Tax-related representations set forth in Annex B only, knowledge of" or "known to" or words of similar effectqualifications, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from any nonfulfillment of or arising out of any breach of failure to perform any covenant or agreement made by on the Company, part of the Sellers, Sellers contained in this Agreement or any of them pursuant to this Agreement; or
the Operative Agreements (including, without limitation, any certificate delivered in connection herewith or therewith), (iii) resulting from any failure to comply with any bulk sales or arising out similar Laws of any claim described on SCHEDULE 7.2(a)(iii)Governmental Authority other than with respect to the Assumed Liabilities or to provide notice to or consult with or receive the consent of or seek the advice of any work council or union in France, and (iv) Retained Liability; provided, further, (i) that if and to the extent that any
1- NY/2171027.1 65 indemnification under this Section 14.01(a) is unenforceable, but subject to the same terms, conditions, limitations and time periods applicable to such indemnification under this Agreement, the Sellers shall make the maximum contribution to the payment and satisfaction of the indemnified Losses as shall be permissible under applicable Laws and (ii) in no event will Sellers be liable to provide any indemnification under this Section 14.01(a) as to any matter to the extent that Purchasers bear indemnification responsibility under Article XII hereof for such matter.
(ib) The No amounts of indemnity shall be payable as a result of a claim under Section 14.01(a)(i) in respect of a breach of a representation or warranty of Sellers shall have no liability under paragraph (a) unless one other than a claim based upon fraud or more of the Buyer's Indemnified Persons gives written notice willful or criminal misconduct or, with respect to the Sellers asserting a claim for LossesDeductible but not the Covered Losses limitation, including reasonably detailed facts and circumstances pertaining theretopursuant to the Seller Fundamental Representations), before the expiration of the period set forth below:
(A) for claims under clauses (i) with respect to Losses arising from any single event or series of related events that do not exceed US$100,000 (“Covered Losses”), and (ii), ) unless and until the earlier Indemnified Parties have suffered, incurred, sustained or become subject to Losses (other than Covered Losses) with respect thereto in excess of one US$6,200,000 (1the “Deductible”) year after in the Closing Date or aggregate, in which case the date of release of Buyer's audited financial statements Indemnified Parties shall be entitled to indemnification for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period amount of five years after Losses in excess the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow AgreementDeductible; provided, however, that the foregoing limitation shall not apply to any claim aggregate indemnification obligation of the Sellers in respect of claims (a) under Section 7.2(a14.01(a)(i)(other than claims based upon fraud or willful or criminal misconduct or pursuant to the Seller Fundamental Representations) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to US$31,000,000 and (b) under Section 14.01(a)(i) for all claims (other than claims based upon fraud or willful misconduct) shall be limited to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationFinal Total Purchase Price.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the SellersEach Seller, jointly and severally --------------------------- severally, agrees to that it will indemnify, defend, indemnify protect and hold harmless Buyer's Indemnified Persons Purchaser and its officers, shareholders, directors, divisions, subdivisions, affiliates, subsidiaries, parent, agents, employees, legal representatives, successors and assigns from and against all Losses directly claims, damages, actions, suits, proceedings, demands, assessments, adjustments, penalties, costs and expenses whatsoever (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) whether equitable or indirectly incurred by legal, matured or sought contingent, known or unknown to be imposed upon any of them:
(i) resulting from such Seller, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising out of occurrences prior to, at, or after the date of this Agreement, from: (a) any breach of any of of, misrepresentation in, untruth in or inaccuracy in the representations or and warranties made by the CompanySellers, Sellers set forth in this Agreement or any of them in or pursuant the Schedules attached to this Agreement or in the Collateral Documents; (b) nonfulfillment or nonperformance of any agreement, document covenant or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference condition (to the materiality extent such condition could have been satisfied with commercially reasonable effort) on the part of matters stated therein, a Seller made in this Agreement and any limitations of such representations and warranties as being "to the knowledge of" be performed by a Seller before or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except (c) violation of the requirements of any governmental authority relating to the reporting and payment (to the extent payment exceeds the amount reserved for in the Most Recent Balance Sheet) of Taxes of the Company arising or accrued prior to the Closing Date; and (d) any claim by a third party that, for any claim based upon if true, would mean that a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims condition for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement set forth in subsections (subject to the terms of the Escrow Agreementa); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsulab), or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification(c) of this Section 9.1 of this Agreement has occurred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mace Security International Inc)
Indemnification by Sellers. Subject to the other provisions of this Article VIII, from and after the Closing, the Individual Sellers shall jointly and severally, and the Trust Sellers shall severally but not jointly, indemnify the Parent, the Purchaser, the Company and each of their respective Subsidiaries, including, for the avoidance of doubt, GDC Media Limited (“GDC Media”), a private limited company registered under the laws of Ireland, (the “Purchaser Indemnitees”) and save and hold each of them harmless against any Losses suffered, incurred or paid, directly or indirectly, by them as a result of, arising out of or related to: (a) Subject to any failure of any representation or warranty made by the limitations Sellers in paragraph this Agreement (bwhether or not contained in Article III) below(other than (i) the representations and warranties contained in Section 3.15 (Tax Matters), which are addressed in Section 7.04 and (ii) the representations and warranties in Section 3.01, Section 3.02, Section 3.03, and Section 3.06, for which each of the Sellers, jointly ’ obligations to indemnify the Purchaser Indemnitees shall be several and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought not joint) to be imposed upon any of them:
(i) resulting from or arising out of any breach of any true and correct in all respects on and as of the representations or warranties made by the Company, Sellers or any date of them in or pursuant to this Agreement or and on and as of the Closing Date as if made on such date (other than those made on a specified date, which shall be true and correct in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification all respects as of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
specified date); (iib) resulting from or arising out of any breach of any covenant or agreement made by the Sellers contained in this Agreement (c) any Company Transaction Expenses to the extent not paid by the Sellers prior to the Closing Date, paid by the Purchaser at the Closing pursuant to Section 2.02(h), or included in the calculation of the Working Capital Adjustment pursuant to Section 2.02; and (d) the Company’s historical practices with respect to the collection and remittance of sales and use Taxes to relevant state Governmental Entities relating to transactions that could be deemed taxable sales of “software as a service”, online subscriptions, or similar offerings for any Pre-Closing Period (this subsection (d) referred to herein as the “Sales Tax Indemnity”). For the avoidance of doubt, the Sellers, or any of them ’ obligations to indemnify and hold harmless Purchaser Indemnitees pursuant to this Agreement; or
clause (iiib) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice immediately preceding sentence shall not terminate until the full performance of the relevant covenants in accordance with their terms. Notwithstanding the foregoing, the obligation of the Sellers hereunder to indemnify the Purchaser Indemnities with respect to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
Sales Tax Indemnity shall be exclusive to clause (A) for claims under clauses (i) and (iid), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements above, and for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period sake of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 clarity shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to governed by clause (iii) belowa), Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000above.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowprovisions of this Section 13, from and after Closing, each of the Sellers, Sellers (severally and not jointly nor jointly and severally severally) agrees to defend, indemnify and hold Buyer, the Company and the Subsidiaries (the “Buyer Indemnified Parties”) harmless Buyer's Indemnified Persons from and against all Losses directly any damages, liabilities, losses and expenses (including, but not limited to, reasonable attorney’s fees incurred in defending any claim by a third person, and amounts paid in settlement of any claim or indirectly incurred suit), fines, penalties and interest (collectively, “Loss” or “Losses”) which is sustained or suffered by the Buyer Indemnified Parties to the extent caused by or sought to be imposed upon any of themarising from:
(ia) resulting from or arising out of any a breach of any of representation or warranty made by such Seller or the representations or warranties Company herein;
(b) a failure to perform any covenant made by such Seller herein;
(c) a failure to perform any covenant made by the Company, Sellers or any of them in or pursuant Company that is to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with be performed by the Company prior to the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iiid) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
and all Taxes (i) The Sellers shall have no liability under paragraph in respect of any taxation year or period ending on or prior to the Closing Date, and (aii) unless one in the case of any taxation year or more period beginning before and ending after the Closing Date, in respect of the Buyer's Indemnified Persons gives written notice portion of such period ending on and including the Closing Date, in each case with respect to which the Buyer has received after the Closing Date an assessment, reassessment or other form of recognized document from a Governmental Authority (other than a court) assessing a liability for such Taxes, but only to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before extent that the expiration aggregate amount of the period set forth below:
(A) for claims under clauses all Taxes described in both (i) and (ii)) above exceeds the amount accrued as a liability for Taxes on the Interim Financial Statements;
(e) any claim against the Company or any of its Subsidiaries by any of their employees or former employees or by any Governmental Authority (other than a court) on behalf of any such employee or former employee only if: (i) Notice with respect to such claim has been received by the Sellers’ Representative prior to October 31, until 2005; (ii) the earlier of one (1) year after matter or matters giving rise to such claim relate solely to the period prior to the Closing Date (and, for greater certainty, such matter or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years matters do not relate to any conduct or action occurring on or after the Closing Date; except that, for ) (any such claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
satisfying both (i) and (ii) The maximum of this Section 13.1(e), an “Employee Claim”), and provided however, notwithstanding any other provision in this Agreement to the contrary; (iii) no indemnification shall be payable by such Seller pursuant to this Section 13.1(e) to the extent that any of the Buyer Indemnified Parties has insurance coverage for any Losses relating to such Employee Claim; (iv) the aggregate liability of all Sellers pursuant to this Section 13.1(e) shall not exceed 75% of the total amount of indemnification payments which would be payable pursuant to this Section 13.1(e) calculated without giving effect to this clause (iv); (v) the aggregate liability of all Sellers for indemnification payable under this Section 13.1(e) shall not exceed $5,000,000 with respect to all Employee Claims for which the Sellers’ Representative has received Notice with respect to such Employee Claim after May 31, 2005; (vi) the aggregate liability of all Sellers may for indemnification payable under this Section 13.1(e) shall not exceed $10,000,000 in the aggregate; and (vii) this Section 13.1(e) shall be liable the exclusive remedy in respect of any claim by any employee or former employee of the Company or any of its Subsidiaries or by any Governmental Authority (other than a court) on behalf of such employee or former employee except to all Buyer's Indemnified Persons pursuant to the extent such claim results in a breach of any other representation or warranty under Section 3 or 4 (for greater certainty, if any such claim results in a breach of any other representation or warranty, this Article 7 Section 13.1(e) shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000applicable).
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject Each Seller shall severally and not jointly and only in proportion to the limitations in paragraph (b) below, each such Seller's pro-rata share of ownership of the SellersCompany immediately preceding the Closing Date indemnify, jointly and severally agrees to defend, indemnify defend and hold harmless Buyer's Indemnified Persons 24/7 and its affiliates (including the Subsidiary and the Company), promptly upon demand at any time and from time to time, against any and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
losses, liabilities, claims, actions, damages and expenses, including without limitation reasonable attorneys' fees and disbursements exceeding in the aggregate more than $50,000 (i) resulting from or collectively, "Losses"), arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with any of the Closing; provided, that for the purpose of this Section 7.2, following: (a) any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness material misrepresentation or breach thereof;
(ii) resulting from or arising out of any warranty made by such Seller in any of the Company's Documents; (b) any material breach or nonfulfillment of any covenant or agreement made by such Seller in any of the Company's Documents; (c) the claims of any broker or finder engaged by any Seller other than Interactive Capital Partners LLC; (d) any customer claims relating to services provided prior to the Closing, to the extent not covered by insurance or reserved against in the Unaudited Balance Sheet; and (e) without in any manner limiting the foregoing, any liabilities or obligations of, or claims or causes of action against, the Sellers, Company which arise with respect to or relate to any of them pursuant period or periods on or prior to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; , except thatfor those which are set forth or reserved against in the Unaudited Balance Sheet or are set forth in a schedule hereto, for or were incurred subsequent to February 28, 1998, in the ordinary course of business as theretofore conducted and are not materially adverse to the operations or prospects of the Company's business. In no event shall the total of any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all BuyerSeller's Indemnified Persons pursuant to liability under this Article 7 shall not paragraph 11 be greater than 10% the portion of the Purchase Price determined in accordance Merger Consideration deposited with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held Agent pursuant to the Escrow Agreement (subject Agreement, as provided by subparagraph 13(d), and as shown on Exhibit A to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Merger Agreement (24/7 Media Inc)
Indemnification by Sellers. (a) Subject to the limitations Except as otherwise expressly provided in paragraph (b) belowthis Article 7, each of the Sellers, Sellers shall jointly and severally agrees to defend, indemnify and hold harmless BuyerSESI and any successors of SESI through merger or consolidation (SESI and such Persons, collectively, "SESI's Indemnified Persons Persons"), and shall reimburse SESI's Indemnified Persons, for, from and against all Losses each and every demand, claim, action, loss (which shall include any diminution in value), liability, judgment, damage, cost and expense (including, without limitation, interest, penalties, costs of preparation and investigation, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) (collectively, "Losses") imposed on or incurred by SESI's Indemnified Persons, directly or indirectly incurred by or sought to be imposed upon any of them:
(i) indirectly, relating to, resulting from or arising out of: (a) any inaccuracy in any representation or warranty of Sellers in this Agreement or any certificate, document or other instrument delivered or to be delivered pursuant hereto in any respect whether or not SESI's Indemnified Persons relied thereon or had knowledge thereof or (b) any breach or nonperformance of any covenant, agreement or other obligation of Sellers under this Agreement or any certificate, document or other instrument delivered or to be delivered pursuant hereto; provided, however, that, except for a knowing and intentional breach of any representation or warranty of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference (as to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, which there shall be disregarded in determining any inaccuracyno minimum or maximum amount of liability), untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) this Section 7.1 unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier aggregate of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30all Losses resulting therefrom exceeds $50,000, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking in which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, event Sellers shall be jointly and severally liable for the all Losses in excess of that amount of such claim up to a maximum aggregate amount of $8,000,0005,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Stock Purchase Agreement (Superior Energy Services Inc)
Indemnification by Sellers. Each Seller hereby agrees that from and after the Closing it, jointly and severally, shall indemnify, defend and hold harmless Buyers, their Affiliates, and their respective directors, officers, shareholders, partners, members, attorneys, accountants, agents, Representatives and employees and their heirs, successors and permitted assigns, each in their capacity as such (the “Buyer Indemnified Parties”) from, against and in respect of any damages, losses, charges, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, diminution of value and costs and expenses (including removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, attorneys’ fees and out of pocket disbursements) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to or arising from or in connection with: (a) Subject except for any matter covered by another clause of this Section 6.2, any breach or inaccuracy of any representation or warranty made by any Seller contained in the Transaction Documents (it being understood that any qualification as to “materiality” (or similar words) or a “Material Adverse Effect” or “Knowledge” (or similar words) included in any such representation or warranty shall apply for purposes of determining whether there was an inaccuracy or breach of such representation or warranty, but shall be disregarded for purposes of computing any Loss in the limitations in paragraph event such representation or warranty is determined to have been breached); (b) belowexcept for any matter covered by another clause of this Section 6.2, each of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach of any covenant, obligation or agreement of any Seller (including as a result of any action or inaction by any of its Affiliates) contained in the Transaction Documents, including any Liability arising out of the representations ownership or warranties operation of the Transferred Assets prior to the Effective Time (other than the Assumed Liabilities); (c) any fraud, intentional misrepresentation or willful breach of any covenant, obligation or agreement of any Seller (including as a result of any action or inaction by any of its Affiliates) contained in the Transaction Documents; (d) any claims made by any Person alleging to own or have had a contractual or other right to acquire any equity or other ownership interests in any Seller or the Company, Sellers Business or any or all of them the Transferred Assets (other than sales of Seller Products in the Ordinary Course of Business) and any matters relating to Sellers’ title to the Business or pursuant any or all of the Transferred Assets to this Agreement or in any agreementthe extent relating to, document or instrument executed and delivered pursuant hereto arising from or in connection with circumstance, actions, events or conditions occurring or existing on or prior to the ClosingClosing Date; provided, (e) any of the Excluded Assets and/or the Excluded Liabilities; (f) any Taxes for which Sellers are responsible in accordance with Section 5.1 and any Taxes attributable to any inaccuracy or breach of any representation or warranty made in Section 3.9 or failure to comply with any Tax-related covenants of Seller set forth in this Agreement (it being understood that for the purpose of this Section 7.2, any qualification as to “materiality” (or similar words) or a “Material Adverse Effect” or “Knowledge” (or similar words) included in any such representation or warranty shall apply for purposes of determining whether there was an inaccuracy or breach of such representations and warranties by reference to the materiality of matters stated thereinrepresentation or warranty, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, but shall be disregarded for purposes of computing any Loss in the event such representation or warranty is determined to have been breached); (g) any breach or inaccuracy of any representation or warranty made by any Seller contained in Section 3.18(d) (it being understood that any qualification as to “materiality” (or similar words) or a “Material Adverse Effect” or “Knowledge” (or similar words) included in any such representation or warranty shall apply for purposes of determining any inaccuracy, untruth, incompleteness whether there was an inaccuracy or breach thereof;
(ii) resulting from of such representation or arising out warranty, but shall be disregarded for purposes of computing any Loss in the event such representation or warranty is determined to have been breached), and any breach of any covenant covenant, obligation or agreement made of any Seller (including as a result of any action or inaction by any of its Affiliates) set forth in Section 5.10 or contained in the CompanyTransition Services Agreement relating to any Tooling, including the Sellersoperation, repair, maintenance, implementation, transition or manufacture of any Tooling, (h) any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with Sellers (or any Person acting on their behalf) in connection with any transactions contemplated by this Agreement; (i) any product or component thereof manufactured by or shipped, or any services provided by, any Seller, in whole or in part, prior to the Closing (other than any Assumed Liability); (j) any Liability (other than any Assumed Liability) caused by any action of them any Seller or any of its Affiliates on or prior to the Closing; (k) any Purchase Price Adjustment Amount owed to Buyers pursuant to this AgreementSection 2.6; or
and (iiil) resulting from or arising out any and all Liabilities in respect of any claim described on SCHEDULE 7.2(a)(iii).
(i) The employees of Sellers shall have no liability under paragraph (a) unless one or more that are not Employees and any and all Liabilities in respect of the Buyer's Indemnified Persons gives written notice Employees, including the Transferred Employees to the Sellers asserting a claim for Losses, extent that such Liabilities arise from facts or circumstances occurring up to and including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mad Catz Interactive Inc)
Indemnification by Sellers. (a) Subject Notwithstanding any term in this Agreement to the limitations contrary, and subject to the limitation provided in paragraph (b) belowthe introductory language to Article III and Section 7.4, each of the SellersSellers shall indemnify, jointly and severally agrees to defend, indemnify save and hold Buyer and its officers, directors, employees, agents and Affiliates (including, after the Closing, the Company; collectively, "Buyer Indemnitees") harmless Buyer's Indemnified Persons from and against all Losses directly demands, claims, allegations, liabilities, costs and expenses (including reasonable legal fees, interest, penalties, and all reasonable amounts paid in investigation, defense or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach settlement of any of the representations foregoing, whether or warranties not the underlying demands, claims, allegations, etc., of third parties are meritorious; collectively, "Buyer Damages") asserted against, imposed upon, resulting to, required to be paid by or incurred by any Buyer Indemnities, directly or indirectly, in connection with, arising out of, which could result in, or which would not have occurred but for, (i) a breach of any representation or warranty made by Sellers or the Company in this Agreement, in any certificate or document furnished pursuant hereto by Sellers or the Company or any Other Agreement to which Sellers or the Company, Sellers or any of them is or is to become a party, (ii) a breach or nonfulfillment of any covenant or agreement made by Seller or the Company in or pursuant to this Agreement or in any agreementOther Agreement to which Sellers or the Company, document or instrument executed any of them, is or is to become a party, (iii) any and delivered pursuant hereto all liabilities of the Company, whether due or in connection with to become due, existing on the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from Closing Date or arising out of any breach transaction entered prior to the Closing Date, except for liabilities disclosed in writing to Buyer on or before Closing or fully reserved on the Final Closing Balance Sheet (other than the liabilities covered by Section 7.2(vi) hereof), (iv) noncompliance with or a violation of and any covenant Buyer Damages with respect to Environmental Laws and related to events prior to the Closing, (v) any material liability under any warranty or agreement made by the Company, the Sellersguarantee or other similar promise, or any of them pursuant material contract or agreement, given, issued, made or entered into by Company on or before Closing (except those disclosed in writing to Buyer on or before Closing), and/or (vi) any pending or threatened litigation disclosed as Item 1 on Schedule 3.12 to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) . The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice foregoing to the contrary notwithstanding the liability of Sellers asserting a claim for Losses, including reasonably detailed facts hereunder shall be several and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim they shall contribute to such indemnification pro rata based upon a covenant or undertaking which by its terms is to be performed after their respective equity ________ interests in the Closing, then the period above shall commence on the date when such covenant or agreement should have been performedCompany.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Stock Purchase Agreement (United States Filter Corp)
Indemnification by Sellers. (a) Subject Except as set forth herein, for the period commencing on the Closing Date and ending upon the expiration of the periods specified in Section 7.1 of this Agreement, Sellers shall, subject to the limitations set forth in paragraph (b) belowthis Article 7, each of the Sellersindemnify, jointly and severally agrees to defend, indemnify defend and hold harmless Buyer's Buyer and its directors, officers, employees, shareholders, attorneys, accountants and agents (collectively, “Buyer Indemnified Persons from Parties”) against and against in respect of all Losses directly sustained or indirectly incurred by or sought to be imposed upon any of themthe Buyer Indemnified Parties that arise out of:
(i) resulting from any breaches of Sellers’ or arising out Speedy’s representations, warranties, covenants or agreements (in the case of any breach covenants or agreements made by Speedy, solely with respect to covenants or agreements to be performed on or prior to the Closing Date) set forth in the Acquisition Documents or any certificate delivered pursuant thereto;
(ii) (A) except as set forth in Schedule 7.3(a)(ii) any Tax of Speedy for all taxable periods ending on or before the Closing and the pro rata portion through the effectiveness of the Closing for any taxable period (each such taxable period, a “Pre-Closing Tax Period”), (B) any Tax of any member of an affiliated, consolidated, combined or unitary group of which LLC (or any predecessor) is or was a member on or prior to the effectiveness of the representations or warranties made by the CompanyClosing, Sellers including pursuant to Treasury Regulation §1.1502-6 or any similar state, local, or foreign law or regulation, and (C) any Tax of them in any Person (other than LLC) imposed on Speedy as a transferee or successor, by contract or pursuant to this Agreement any law, rule, or in any agreementregulation, document which Taxes relate to an event or instrument executed and delivered pursuant hereto or in connection with transaction occurring before the effectiveness of the Closing; provided, that however, for the purpose avoidance of this Section 7.2doubt, the Sellers shall not be required to indemnify the Buyer Indemnified Parties for any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) Tax resulting solely from or arising out of any breach of any covenant or agreement made action taken by the Company, Buyer after the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii)Effective Date.
(ib) The Sellers shall have no liability under paragraph For purposes of Section 7.3(a)(ii), in the case of any taxable period that includes (abut does not end on) unless one or more the effectiveness of the Buyer's Indemnified Persons gives written notice Closing (a “Straddle Period”), the amount of any Taxes based on or measured by income or receipts of Speedy for a Straddle Period which relate to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the effectiveness of the Closing (and for such purpose, the taxable period set forth below:
(A) for claims under clauses (iof any partnership or other pass-through entity in which Speedy holds a beneficial interest shall be deemed to terminate at such time) and (ii), until the earlier amount of one (1) year after other Taxes of Speedy for a Straddle Period which relate to the Pre-Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is Tax Period shall be deemed to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to Tax for the entire taxable period multiplied by a maximum fraction, the numerator of $8,000,000which is the number of days in the taxable period ending on the effectiveness of the Closing and the denominator of which is the number of days in such Straddle Period.
(iiic) All claims for indemnification or other recourse or legal action against Peninsula under Any payments pursuant to this Article 7 Section 7.3 shall be limited exclusively treated as an adjustment to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available Purchase Price for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationall Tax purposes.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (MSC-Medical Services CO)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowEach Seller agrees that it will -------------------------- indemnify, each of the Sellers, jointly and severally agrees to defend, indemnify protect and hold harmless Buyer's Indemnified Persons Purchaser and its officers, shareholders, directors, divisions, subdivisions, affiliates, subsidiaries, parent, agents, employees, legal representatives, successors and assigns from and against all Losses directly claims, adverse consequences, losses, damages, actions, suits, proceedings, demands, assessments, adjustments, penalties, costs and expenses whatsoever (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) whether equitable or indirectly incurred by legal, matured or sought contingent, known or unknown to be imposed upon any of them:
(i) resulting from such Seller, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising out of occurrences prior to, at, or after the date of this Agreement, from: (a) any breach of any of of, misrepresentation in, untruth in or inaccuracy in the representations or and warranties made by the CompanySellers, Sellers set forth in this Agreement or any of them in or pursuant the Schedules attached to this Agreement or in the Collateral Documents; (b) nonfulfillment or nonperformance of any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement condition on the part of a Seller made in this Agreement and to be performed by the Company, the Sellers, a Seller before or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except and (c) any claim by a third party that, for any claim based upon if true, would mean that a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims condition for indemnification set forth in subsections (a) or other recourse or legal action against Peninsula under (b) of this Article 7 shall be limited exclusively to the assets Section 9.1 of Peninsula and to the assets held pursuant to the Escrow this Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationhas occurred.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the terms and conditions herein, including the limitations set forth in paragraph (b) belowSections 8.1 and 8.6, after the Closing, each of the SellersSeller, jointly and severally agrees solely as to defendhimself, herself or itself, shall indemnify and hold harmless Buyer's Indemnified Persons the Purchaser Protected Parties from and against and in respect of any and all Losses directly resulting from, in connection with or indirectly arising out of, or any Claim relating to (i) any breach of any representation or warranty made by such Seller in Article V of this Agreement, or (ii) any breach by such Seller of any of the covenants of this Agreement.
(b) Subject to the terms and conditions herein, including the limitations set forth in Sections 8.1 and 8.6, each Seller, severally and not jointly, shall indemnify and hold harmless the Purchaser Protected Parties from and against and in respect of such Seller’s Total Consideration Pro-Rata Percentage of any and all Losses incurred by the Purchaser Protected Parties resulting from, in connection with or sought to be imposed upon arising out of, or any Claim relating to, any of themthe following:
(i) resulting from any breach of any representation or warranty made by Target in this Agreement;
(ii) any breach by Target or Agent of any of the covenants of this Agreement;
(iii) notwithstanding any disclosure in this Agreement (including in the Schedules), any Liability for Taxes (A) of the Companies for all taxable periods, or portions thereof (determined in accordance with the allocation provisions of Section 7.6(c)(i) — (iii)), ending on or before the Closing Date, or (B) owing by any Person (other than the Companies) for which any Company is liable as a result of transactions or circumstances occurring or existing on or before the Closing Date, including without limitation, under any agreement or arrangements with respect to payment of any Tax in effect on or before the Closing Date, in each case, except to the extent accrued on the Closing Date Balance Sheet;
(iv) notwithstanding any disclosure in this Agreement (including in the Schedules), any Liability for (A) Transaction Expenses, or (B) vacation pay or sick pay, in each case, except to the extent accrued on the Closing Date Balance Sheet;
(v) any Claim relating to any Dissenting Shares;
(vi) the matters disclosed on Schedule 4.15 and as Items 2 and 3 on Schedule 4.20(b), in each case except to the extent accrued on the Closing Date Balance Sheet;
(vii) the exercise of any option to purchase shares of Target Common Stock under the Target Stock Option Plan at any time after immediately prior to the Effective Time;
(viii) notwithstanding any representation or warranty contained herein, or any limitations or qualifications of, or exceptions to (whether in a Schedule attached hereto or otherwise), any such representation and warranty, except as set forth on Schedule 8.3(b), any obligation or liability (including accounts payable), absolute or contingent, known or unknown, liquidated or unliquidated, whether due or to become due and regardless of when or by whom asserted (a “Liability”) including, without limitation, deferred Tax liabilities, vacation time or pay, severance pay, future amounts payable arising out of prior transactions, and any other Liabilities relating to or arising out of any act, omission, transaction, circumstance, sale of goods or services, or other condition which occurred or existed on or before the Closing Date, which is not fully shown or provided for in the Closing Date Balance Sheet, except under the executory portion of any Contract (A) by which any Company is bound on the Closing Date, (B) which, if required by this Agreement, is disclosed in a Schedule hereto, and (C) the existence of which does not otherwise constitute or result from a breach of any representation, warranty or covenant of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in a breach or default by either Company under any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000Contract; and
(Bix) for claims under clause notwithstanding any disclosure in this Agreement (iiiincluding in the Schedules), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively Liability relating to the assets cancellation of Peninsula and options to the assets held purchase shares of Target Common Stock pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so 0000 Xxxxxxx Stock Option Plan as to reduce the assets available for recovery contemplated by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationSection 1.11.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the Sellers, Sellers shall jointly and severally agrees to defendindemnify, indemnify defend and hold harmless Buyer's Indemnified Persons from Purchaser, its affiliates, and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
their respective officers, directors, employees, members, partners and shareholders in their capacities as such (i) resulting from or arising out of any breach including the successors of any of the representations foregoing) from, against and with respect to any claim, liability, obligation, loss, damage, assessment, judgment, cost or warranties made expense (including, without limitation, reasonable attorneys', environmental consultants' and accountants' fees and costs) of any kind or character ("Damages"), (subject to Section 7.05), arising out of or in any manner incident, relating or attributable to (a) any misrepresentation or breach of warranty by any of the CompanySellers contained in this Agreement (subject to Section 7.03), (b) any failure by Sellers to perform, cause to be performed or observe any covenant to be performed or observed by Sellers or the Company under this Agreement, (c) any guaranty to which the Company is a party and which guarantees amounts payable by, or obligations of, the Sellers or any of them in their affiliates or pursuant to this Agreement related parties, (d) any liability of the Company under any agreements, contracts, negotiations and other dealings by the Sellers with any third party concerning the sale of the capital stock or in business of the Company, (e) any agreement, document liability for federal income or instrument executed and delivered pursuant hereto state or in connection with the Closing; provided, that for the purpose local income or franchise Taxes of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, Sellers that is based upon or any of them pursuant measured with respect to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more the income of the Buyer's Indemnified Persons gives written notice to Company, the Sellers asserting a claim for Losses, any period up through and including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, or resulting from any restatement of the financial statements (including without limitation the inventory position) of the Company for any claim year in order to comply with GAAP, (f) any liability for federal income or state or local income or franchise Taxes of Sellers based upon a covenant on income for any post-Closing period, (g) any liability of the Sellers or undertaking which the Company for Taxes resulting from the transactions contemplated by its terms is this Agreement, including, without limitation, any Taxes resulting from the disposition, deemed or actual, of assets or stock contemplated by this Agreement, and (h) any liability of the Company relating to insurance coverage under Company policies or plans for persons who were not eligible to be performed after the Closing, then the period above shall commence on the date when covered under such covenant policies or agreement should have been performedplans.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject After the Closing and subject to the limitations in paragraph (b) belowterms and conditions of this Article XI, each of the SellersSellers and the Principals, jointly and severally agrees to defendseverally, shall indemnify and hold harmless Buyer's , Holdco, the Company, their Affiliates (other than the Sellers) and each of their respective officers, managers, employees, members, directors, partners, shareholders, successors, heirs, assigns and agents (collectively, the “Buyer Indemnified Persons from Parties”) from, and against pay and reimburse the Buyer Indemnified Parties for, all Losses Losses, directly or indirectly incurred by indirectly, resulting from, arising out of, relating to, in the nature of, in connection with or sought to be imposed upon any of themcaused by:
(ia) resulting from any breach or arising out inaccuracy of any representation or warranty made by any Seller or Principal in this Agreement (other than in Article III) or in any Transaction Document;
(b) any breach of any or inaccuracy of the certificate delivered by any Seller or Principal pursuant to Section 8.1 (except as such certificate relates to the representations or and warranties made by the Company, Sellers or any of them such Seller in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofArticle III);
(iic) resulting from or arising out of any breach of any covenant or agreement of any Seller or Principal in this Agreement or any Transaction Document (other than the Non-Competition, Non-Solicitation and Confidentiality Agreements);
(d) any claim by any Person claiming through or on behalf of any Seller or Principal arising out of or relating to any act or omission by Buyer or any other Person in reliance upon instructions from or notices given by the Seller or any Principal; or
(e) any other matter set forth on Schedule 11.1. After the Closing and subject to the terms and conditions of this Article XI, each Seller together with its respective Principal(s), if applicable, severally and not jointly, shall indemnify and hold harmless the Buyer Indemnified Parties from, and pay and reimburse the Buyer Indemnified Parties for, all Losses, directly or indirectly, resulting from, arising out of, relating to, in the nature of, in connection with or caused by:
(f) any breach or inaccuracy of any representation or warranty made by the Company, the Sellers, or any Seller and/or its respective Principal(s) contained in Article III of them pursuant to this Agreement; or
(iiig) resulting from or arising out any breach of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performedof a Seller and/or its respective Principal(s) in such Seller’s Non-Competition, Non-Solicitation and Confidentiality Agreement.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Share Purchase Agreement (American Tire Distributors Holdings, Inc.)
Indemnification by Sellers. (a) Subject For claims for indemnification made under this Section 7.2, for events or circumstances arising out of the period prior to Closing, Sellers will, from and after Closing and during the period prior to the limitations in paragraph (b) below, each of the SellersExpiration Date, jointly and severally agrees severally, unconditionally, absolutely and irrevocably agree to and shall defend, indemnify and hold harmless Buyer and each of Buyer's ’s subsidiaries, shareholders, affiliates, officers, directors, employees, counsel, accountants, agents, successors, assigns, heirs and legal and personal representatives (Buyer and all such persons or entities are collectively referred to as “Buyer’s Indemnified Persons”) from and against, and shall reimburse Buyer’s Indemnified Persons from for, each and against all Losses every Loss paid, imposed on or incurred by Buyer’s Indemnified Persons, directly or indirectly incurred by or sought to be imposed upon any of them:
(i) indirectly, relating to, resulting from or arising out of: (a) any inaccuracy in any representation or warranty of any Company or Sellers under this Agreement, or the Schedules hereto, or any breach or nonfulfillment of any covenant, agreement or other obligation of the representations any Seller or warranties made by the Company, Sellers or any of them in or pursuant to such Company under this Agreement or in any agreement, agreement or document or instrument executed and delivered pursuant hereto or in connection hereto; (b) all Environmental Claims arising with the Closing; providedrespect to facts, that for the purpose of this Section 7.2conditions, any qualification of such representations and warranties by reference to the materiality of matters stated thereinevents, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts operations and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after existing solely prior to the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that in the foregoing limitation shall not apply event of any Environmental Claim that arises with respect to any claim under Section 7.2(a) (iii) andfacts, subject to clause (iii) belowconditions, Sellers shall be jointly events, operations and severally liable for circumstances arising both before and after the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for Closing Date, Seller’s indemnification or other recourse or legal action against Peninsula under this Article 7 obligation shall be limited exclusively to such matters arising with respect to facts, conditions, events, operations and circumstances prior to the assets of Peninsula Closing Date; and (c) the Retained Liabilities. Each such Loss is hereinafter referred to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into as a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification“Seller Indemnifiable Claim”.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Wca Waste Corp)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowFrom and after Closing, each of the Sellers, Sellers jointly and severally agrees to defend, shall indemnify and hold harmless Buyer's Indemnified Persons Buyer and its affiliates and their respective officers and directors, employees, agents, and representatives, and any Person claiming by or through any of them, as the case may be, from and against any and all Losses directly arising out of or indirectly incurred by or sought to be imposed upon any of themresulting from:
(ia) resulting from any representations and warranties of Sellers in this Agreement not being true and accurate when made or at Closing;
(b) any failure by Sellers to perform any of their covenants, agreements, or obligations in this Agreement;
(c) the development operations, closure, remediation and reclamation of the McCoy/Cove Complex prior to Closing, including but not limited to thx xxxment and performance of its obligations under or with respect to the Summa Royalty with respect to periods prior to Closing, but excluding any liabilities arising out of any breach of any the development, operations, closure, remediation or reclamation of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, McCoy/Cove Complex that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000are Assumed Liabilities; and
(Bd) for claims under clause (iii)xxx xther liabilities and obligations of Sellers that are not Assumed Liabilities. If, a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% reason of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply claim of any third party relating to any claim under Section 7.2(a) (iii) and, of the matters subject to clause (iii) belowsuch indemnification, an Encumbrance, attachment, garnishment, or execution is placed or made upon any of the properties or assets owned or leased by Buyer or any other Indemnitee under this Section, in addition to any indemnity obligation of Sellers under this Section, Sellers shall be jointly and severally liable for furnish a bond sufficient to obtain the amount prompt release thereof within five days from receipt of such claim up to a maximum of $8,000,000notice relating thereto.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, The Sellers each of the Sellersagree that they -------------------------- will each, jointly and severally agrees to severally, indemnify, defend, indemnify protect and hold harmless Buyer's Indemnified Persons Purchaser, EESI and their officers, shareholders, directors, divisions, subdivisions, affiliates, subsidiaries, parent, agents, employees, successors and assigns from and against all Losses directly claims, damages, actions, suits, proceedings, demands, assessments, adjustments, penalties, costs and expenses whatsoever (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) whether equitable or indirectly incurred by legal, matured or sought contingent, known or unknown to be imposed upon any of them:
(i) resulting from the Sellers, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising out of occurrences prior to, at, or after the date of this Agreement, from: (a) any breach of any of of, misrepresentation in, untruth in or inaccuracy in the representations and warranties by Sellers, set forth in this Agreement or warranties made by in the Company, Sellers or any of them in or pursuant Schedules attached to this Agreement or in the Collateral Documents; (b) nonfulfillment or nonperformance of any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement condition on the part of Sellers made in this Agreement and to be performed by the Company, the Sellers, Sellers before or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except (c) violation of the requirements of any governmental authority relating to the reporting and payment (to the extent payment exceeds the amount reserved for in the Most Recent Financial Statement) of federal, state, local or other income, sales, use, franchise, excise or property tax liabilities of the Companies arising or accrued prior to the Closing Date; (d) any violation of any federal, state or local "anti-trust," "racketeering," or "unfair competition law," including, without limitation, the Xxxxxxx Act, Xxxxxxx Act, Xxxxxxxx Xxxxxx Act, the Racketeer Influenced or Corrupt Organizations Act, or the Federal Trade Commission Act; or (e) any claim by a third party that, for any claim based upon if true, would mean that a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims condition for indemnification set forth in subsections (a), (b), (c) or other recourse or legal action against Peninsula under (d) of this Article 7 shall be limited exclusively to the assets Section 9.1 of Peninsula and to the assets held pursuant to the Escrow this Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationhas occurred.
Appears in 1 contract
Samples: Reorganization Plan and Agreement (Eastern Environmental Services Inc)
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the Sellers, jointly terms and severally conditions set forth herein KT agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of themthem as a result of the following:
(i) resulting from or arising out of any breach of any of the representations or warranties (other than those in Sections 4.1, 4.2, 4.7, 4.9(d) and 4.16(d)) made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofAgreement;
(ii) resulting from or arising out of any breach of any of the representations or warranties made by the Sellers pursuant to Section 4.7;
(iii) resulting from or arising out of any breach of any of the representations or warranties made by the Sellers pursuant to Section 4.1, 4.2 and 4.9(d);
(iv) resulting from or arising out of any breach of any of the representations or warranties made by the Sellers pursuant to Section 4.16(d);
(v) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, Sellers or any of them in or pursuant to this AgreementAgreement except for any breach of any covenant or agreement contained in Sections 7.1(i) and 7.1(j); or
(iiivi) resulting from or arising out in respect of any claim described on SCHEDULE 7.2(a)(iii)Retained Liability.
(b) KT's obligations to indemnify Buyer's Indemnified Persons pursuant to paragraph (a) above are subject to the following limitations:
(i) The Sellers KT shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers KT asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before (x) a period of one (1) year from the expiration Closing Date for claims under clause (i) paragraph (a) above; (y) for so long as any claim may be made in respect of such matters under any applicable statute of limitations, as it may be extended by operation of law, for claims under clauses (ii) and (v) of paragraph (a) above; (z) a period of two (2) years from the Closing Date for claims under clause (iii) of paragraph (a) above; and (aa) a period set forth below:of (3) years from the Closing Date for claims under clause (iv) of paragraph (a) above; and (bb) without limitation as to time for claims under clause (vi) of paragraph (a) above.
(Aii) Indemnification for claims under clauses (i) and ), (ii), until (iii), (iv) and (v) of paragraph (a) shall be payable by KT only if the earlier aggregate amount of one (1) year after the Closing Date or the date of release of all Losses hereunder by Buyer's audited financial statements Indemnified Persons shall exceed $100,000 (the "BUYER THRESHOLD"), at which point KT shall be responsible for all Losses, without regard to the fiscal year ended September 30, 2000; andBuyer Threshold.
(Biii) Sellers' entire liability for claims under clause (iiii) of paragraph (a) shall not exceed an aggregate of $3,250,000. For claims under clause (iv) of paragraph (a), a KT and Buyer shall each pay one-half of all Losses thereunder, provided, however, that Sellers' entire liability for claims under clause (iv) of paragraph (a) shall not exceed (x) an aggregate of $8,000,000 for claims made during the period of five years after beginning on the Closing Date and ending on that date which is twelve (12) months from the Closing Date (the "First Anniversary Date; except that"), (y) an aggregate of $4,000,000 for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then claims made during the period above shall commence beginning on the day following the First Anniversary Period and ending on that date when such covenant or agreement should which is twelve (12) months from the First Anniversary Period (the "Second Anniversary Period") and (z) an aggregate of $2,000,000 for claims made during the period beginning on the day following the Second Anniversary Period and ending on that date which is twelve (12) months from the Second Anniversary Period. Sellers' entire liability for claims under clauses (ii), (iii) and (v) of paragraph (a), shall not exceed the sum of $32,500,000 plus any future Earn-Out Payments plus any future Royalty Payments, which Buyer shall have been performeda right to offset against claims. Sellers liability for claims under clause (vi) of paragraph (a) shall be unlimited.
(iiiv) The maximum gross amount with respect to a claim for indemnification for which the Sellers may be liable to all a Buyer's Indemnified Persons Person pursuant to this Article 7 10 shall not be greater than 10% reduced by any insurance proceeds actually recovered by or on behalf of the Purchase Price determined in accordance with Indemnified Person on account of the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000indemnifiable Loss.
(iiic) All For the purposes of this Section 10.2, any qualification of representations and warranties by reference to materiality of matters stated therein shall be disregarded in determining any Losses resulting from any breach thereof but not for purposes of determining whether a breach has occurred.
(d) Except for claims for indemnification or other provided for in Sections 7.1(i) and 7.1(j) and as provided in Section 11.3, the indemnification provided for in this Article 10 shall be the exclusive remedy for breaches of representations, warranties and covenants contained in this Agreement provided that no party hereto shall be deemed to have waived any right of recourse or legal action against Peninsula (whether a claim under this Article 7 shall be limited exclusively to the assets 10 or otherwise) arising from fraud or intentional misconduct of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); providedany other party hereto. Any claims, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, disputes or agents thereof, their successors and assigns, complaints arising from any personal liability or in connection with such claims for indemnificationthe OEM Agreements shall be brought by the parties thereto under and in accordance therewith.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the other terms, conditions and limitations in paragraph (b) belowof this Agreement, each of the Sellers, jointly and severally agrees to defendseverally, indemnify shall indemnify, defend and hold harmless Buyer's Indemnified Persons each Buyer Indemnitee from and against any and all Losses directly suffered or indirectly incurred by any Buyer Indemnitee that arise out of, relate to or sought to be imposed upon any of themresult from:
(ia) resulting from unpaid taxes that are attributable to periods (or arising out portions thereof) ending on or before the Closing Date, and that have not been accrued for purposes of calculating Net Working Capital in accordance with Section 2.3 other than as a result of elections made by the Company or actions taken by the Company that are inconsistent with past positions and practices of the Company, in each case where such election or action is made or taken on or after the Closing Date and not required by or to comply with Law;
(b) any breach of any of the representations Seller representation or warranties made by the Company, Sellers or any of them warranty in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofArticle III;
(iic) resulting from the breach or arising out of any breach violation of any covenant or agreement made by obligation of the Company, the Sellers, Company before Closing or any of them pursuant to Seller under this Agreement; or;
(iiid) resulting any non-compliance with applicable Laws relating to the employment of any Company Worker to the extent that such Loss arises from or arising out of any claim described on SCHEDULE 7.2(a)(iii).relates to actions or events occurring prior to the Closing;
(ie) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice any Transaction Costs, to the Sellers asserting a claim extent not paid prior to the Closing or accrued for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration purposes of the period set forth below:calculating Net Working Capital in accordance with Section 2.3;
(Af) for claims under clauses any Pre-Closing Liabilities (i) and (iithe “Seller Indemnified Liabilities”), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(Bg) for claims under clause (iii), a period the failure of five years after any Person to deliver at the Closing Date; except thatfor transfer to Buyer any certificates representing shares of outstanding capital stock of the Company or Warrants or Options and the election by Buyer (in its sole discretion) to waive any of the conditions to Closing set forth in Section 6.2 as a result of such failure, for any claim based upon a covenant or undertaking which but only to the extent such Losses suffered by its terms is to be performed after Buyer are in excess of the Closing, then the period above shall commence on the date when such covenant or agreement should amounts Buyer would have been performed.
(ii) The maximum amount required to pay for which such shares of outstanding capital stock of the Sellers may be liable to all Buyer's Indemnified Persons Company or Warrants or Options pursuant to Section 2.4(b)(D) of this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated such Losses were not otherwise included in the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners calculation of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationTransaction Costs.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to a cap of $153,333.33 for each individual Seller (“Indemnity Caps”), Sellers hereby covenant and agree that, to the limitations in paragraph (b) belowfullest extent permitted by Legal Requirement, each of the Sellers, jointly and severally agrees to they will defend, indemnify and hold harmless Buyer's , and its Related Persons and Representatives, and their respective officers, directors, members, managers, employees, agents, and Representatives, and all successors and assigns of the foregoing (collectively, the “Buyer Indemnified Persons Persons”), for, from and against all Losses directly any Adverse Consequences arising from or indirectly incurred by or sought to be imposed upon any of them:
in connection with: (i) resulting from any Breach of any representation, warranty, covenant, obligation or agreement made by Sellers in the Transaction Documents, the Schedules and Exhibits hereto, the certificates delivered hereunder, any transfer instrument, or any other certificate, document, writing or instrument delivered by Sellers pursuant to or otherwise in connection with the Transaction Documents; (ii) any Liability of CCS based on facts, events or circumstances occurring before the Closing Date, or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; providedownership and operation of CCS, that for the purpose of this Section 7.2CCS Assets, any qualification of such representations and warranties by reference the CCS business prior to the materiality of matters stated thereinClosing Date, or facts and circumstances relating specifically to CCS, the CCS Assets, and any limitations of such representations and warranties as being "the CCS business existing at or prior to the knowledge of" Closing, respectively, whether or "not such Liabilities or claims were known to" or words unknown, absolute, accrued or contingent, on such date; (iii) any Liability of CCS to Sellers or any Related Person of Sellers (except in connection with Permitted Encumbrances prior to the date on which Buyer has fully performed under the Transaction Documents); or (iv) any claim by any Person for any brokerage or finder’s fee, commission or similar effectpayment based upon any agreement or understanding alleged to have been made by such Person with any Sellers in connection with this Agreement or any of the Contemplated Transactions.
6.3.3.1 In addition to its indemnification obligations under Section 6.3.3, shall be disregarded in determining subject to the Indemnity Caps, Sellers 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 inaccuracyAdverse Consequences (including costs of cleanup, untruth, incompleteness containment or breach thereof;
(iiother Remedial Action) resulting from or arising out of acts or neglect occurring or conditions existing at or before Closing from or in connection with: (i) any breach Environmental, Health and Safety Liabilities arising out of or relating to (a) the conduct of any covenant activity by Seller, CCS, or agreement made by the Company, the Sellerstheir Related Persons, or any of them pursuant employee, contractor, agent or Representative thereof, relating to this Agreement; or
the CCS Assets or Business, (iiib) resulting from the ownership or arising out operation by any Person at any time on or prior to the Closing Date of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice CCS Assets or Business, or (c), any Hazardous Materials or other contaminants that were present on the CCS Assets at any time on or prior to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and Closing Date; or (ii), until 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 earlier use of one real property) or other damage of or to any Person or any of the CCS Assets, in any way arising from or allegedly arising from (1a) year after any Hazardous Activity conducted by Seller, CCS, their Related Persons or any employee, contractor, agent or Representative thereof, with respect to the CCS 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 date of release of Buyer's audited financial statements for the fiscal year ended September 30Properties (or present or suspected to be present on any other property, 2000; and
(B) for claims under clause (iii)if such Hazardous Material emanated or allegedly emanated from any Property and was present or suspected to be present on any Property, a period of five years after on or prior to the Closing Date; except that), for or Released or allegedly Released by Seller, CCS, their Related Persons, or any Person, on or at any of the Properties or CCS Assets at any time on or prior to the Closing Date. Buyer, either directly or through CCS, will be entitled to control any Remedial Action, any Proceeding relating to a claim based upon a covenant or undertaking that any Environmental Law has been violated and any other Proceeding with respect to which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers indemnity may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula sought under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationSection 6.3.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the Sellers, jointly and severally agrees to defend, Sellers shall indemnify and hold harmless Buyer, the Company, and their respective officers (including without limitation Xxxxxxx X. Xxxxxxxxxx and Xxxxxxx X. Xxxx), employees, agents, attorneys (including without limitation Liskow & Xxxxx and Xxxxxx, Xxxx & Xxxxxxxx, L.L.P. and their respective shareholders, partners, associates and other employees) and shareholders (collectively, the "Buyer Group") in respect of any and all claims, losses, damages, liabilities and expenses (including, without limitation, settlement costs and any reasonable legal, accounting and other expenses for investigating or defending any actions or threatened actions) incurred (collectively, "Losses") by the Buyer Group, together with interest on cash disbursements in connection therewith at the base rate for prime commercial lenders of Buyer's Indemnified Persons primary bank as announced from and against all time to time, plus 1 percent per annum (the "Reference Rate") from 60 days after the date such Losses directly or indirectly were incurred by or sought to be imposed upon any the Buyer Group until paid by Sellers, in connection with each and all of themthe following:
6.1.1. any material breach of any representation or warranty made by Sellers in this Agreement;
6.1.2. the material breach of any covenant, agreement or obligation of Sellers contained in this Agreement or any other instrument delivered at the Closing;
6.1.3. any material misrepresentation contained in any Schedule, certificate or other documents furnished by Sellers pursuant to this Agreement;
6.1.4. the failure to pay when due any and all liabilities for Taxes (as defined in Section 3.21.1.) that (i) resulting from accrued with respect to any taxable periods of the Company ending on or arising out before the Closing Date, (ii) accrued with respect to the assets, operations or business of the Company during all periods up to and including the Closing whether or not such periods are taxable periods, or (iii) are incurred and become payable by the Company or Buyer as a result of the transactions contemplated by this Agreement;
6.1.5. any material claim, demand or cause of action asserted or brought by any person for breach of warranty, or similar claims in connection with sales of products sold or leased by the Company at any time prior to the Closing Date or which comprised any part of the Inventory existing on the Closing Date and which was sold by Buyer within 90 days after the Closing Date;
6.1.6. any material claim, demand or cause of action asserted or brought by any person for physical injury to, death of, or property damage suffered by such person or any other person which was approximately caused by any products sold or leased by the Company at any time prior to the Closing Date;
6.1.7. the material violation of any breach Federal, state, local or foreign laws, regulations, orders, requirements or ordinances, including those dealing with environmental matters, prior to the Closing Date by Sellers, the Company or any of their affiliates, agents or assigns; and
(a) conditions existing at, or caused by events prior to the Closing Date which are violations of any Federal, state or local environmental statute, regulation, requirement or ordinance prior to the Closing Date with respect to the Company or any of its assets, and (b) any other environmental conditions in existence as of the representations Closing Date on the real or warranties made immovable property owned, leased or used by the Company, Sellers whether or any of them not described in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (iSchedule 3.6.1((a) and (iib) being collectively referred to herein as "Environmental Conditions"), until the earlier which as of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then or will in the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% future as a result of the Purchase Price determined in accordance with operation of the Escrow Agreement; providedCompany prior to Closing, howeverrequire remediation, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) andremoval, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to corrective actions, including without limitation the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability Environmental Conditions listed in connection with such claims for indemnificationSchedule 6.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations set forth in paragraph Section 9.4, Sellers shall jointly and severally indemnify Buyers and their respective Affiliates and their respective directors, officers, employees and representatives (bthe “Buyer Indemnified Parties”) against all loss, liability, damage or expense (including reasonable fees and expenses of counsel) (collectively referred to as “Losses”), whether involving a third party or among the Parties to this Agreement, any of the Buyer Indemnified Parties may suffer, sustain or become subject to as a result of or in connection with (a) except as set forth in clause (c) and (d) below, each of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach of any representation or warranty of Sellers contained in this Agreement (including any breach of any representation or warranty of Sellers contained in this Agreement as if it had been made again at and as of the representations or warranties made by the CompanyClosing), Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(iib) resulting from or arising out of any breach of any covenant or agreement made by of Sellers contained herein, (c) the Companyclaims, litigation or proceedings set forth on Schedule 3.12 (collectively, “Known Claims”), if and solely to the Sellers, or any of them pursuant to this Agreement; or
(iii) extent that the aggregate Losses resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
in connection with all such Known Claims exceed (i) The Sellers shall have no liability under paragraph (a) unless one or more the aggregate amount reserved therefor as of December 31, 2013 in the financial statements of the Buyer's Indemnified Persons gives written notice Companies, as set forth on Schedule 9.2, plus (ii) the amount of all cash contributions or other increases (net of any decreases) (any such increases or decreases, to the Sellers asserting extent permitted by this Agreement, Applicable Accounting Principles and applicable Law) to such reserves prior to the Closing (including as contemplated pursuant to Section 5.1(c)), and (d) the claims, litigation or proceedings in substantially the same nature as the Known Claims that arise after the date hereof and through the Closing (collectively, “Unknown Claims”), if and solely to the extent that the aggregate Losses resulting from or arising in connection with all such Unknown Claims exceed the aggregate amount reserved therefor as of the Closing Date in the financial statements of the Companies for such period. For the avoidance of doubt, any claim for indemnification by the Buyer Indemnified Parties with respect to any Known Claims or any Unknown Claims shall be brought pursuant to Section 9.2(c) or Section 9.2(d), as applicable, and shall not be pursued as a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration a breach of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date a representation or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons warranty pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,0009.2(a).
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (RCS Capital Corp)
Indemnification by Sellers. Subject to the other terms and conditions of this Article VII, from and after the Closing, each Seller shall severally and not jointly indemnify, defend and hold harmless Purchaser and its Affiliates (including the Acquired Companies) and their respective Representatives (collectively, the “Purchaser Indemnitees”) against any and all Losses incurred or sustained by, or imposed upon, the Purchaser Indemnitees based upon, arising out of, resulting from or by reason of:
(a) Subject to the limitations in paragraph (b) below, each of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations Seller contained in this Agreement, as of the date hereof or as of the Closing Date as though made on and warranties by reference as of the Closing Date (except to the materiality of matters stated thereinextent the representations or warranties refer to another date, and any limitations in which case as of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofother date);
(iib) resulting from or arising out of any breach or non-fulfillment of any covenant or agreement made to be performed or complied with by such Seller pursuant to this Agreement;
(c) any breach or non-fulfillment of any covenant or agreement to be performed or complied with at or prior to the Company, the Sellers, or Closing by any of them Acquired Companies pursuant to this Agreement; or
(iiid) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one all Taxes of any Acquired Company or more of the Buyer's Indemnified Persons gives written notice relating to the Sellers asserting a claim business of any Acquired Company for Lossesall Pre-Closing Tax Periods, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii)) all Taxes of any member of an affiliated, until the earlier consolidated, combined or unitary group of one which any Acquired Company (1or any predecessor of any Acquired Company) year after is or was a member on or prior to the Closing Date by reason of a Liability under Treasury Regulations Section 1.1502-6 or any similar provisions of applicable Tax Law (other than Taxes arising with respect to groups consisting only of Acquired Companies), (iii) any and all Taxes of any Person imposed on any Acquired Company arising under the principles of transferee or successor Liability or by contract, relating to an event or transaction occurring before the Closing Date and (iv) any Taxes required to be deducted and withheld from amounts payable pursuant to this Agreement or the date of release of Buyer's audited financial statements for Escrow Agreement to the fiscal year ended September 30extent not previously deducted and withheld under Section 2.04; provided, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above that each Seller shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may only be liable to all Buyer's Indemnified Persons the Purchaser Indemnitees for indemnification under this Section 7.02 in proportion to such Seller’s Percentage Interest of such Losses; provided, further, that no Seller shall have any liability for any Loss pursuant to this Article 7 shall not be greater than 10% VII for breach of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount representation or warranty or breach of such claim up to a maximum of $8,000,000covenant or agreement set forth herein by any other Seller.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Samples: Stock Purchase Agreement
Indemnification by Sellers. (a) Subject to Section 10.04, from and after the limitations in paragraph (b) belowClosing Date, each of the SellersSeller, severally and jointly and severally agrees to defend, shall indemnify and hold harmless Buyer's Purchaser and its Affiliates, and their respective officers, directors, employees, agents, successors and assigns (each, a “Purchaser Indemnified Persons from Party”) for and against all Losses directly Losses, arising out of or indirectly incurred by or sought to be imposed upon any of them:
resulting from: (i) resulting from or arising out of any breach of any of the representations representation or warranties warranty made by such Seller or the Company, Sellers or any of them Company contained in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or certificate given in connection with the Closingherewith; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any material breach of any covenant or agreement made contained in this Agreement requiring performance by such Seller or the Company, the Sellers, ; or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii)Pre-Closing Taxes.
(ib) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's With respect to any claims by any Purchaser Indemnified Persons gives written notice Party pursuant to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (iiSection 10.02(a), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for such claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to shall be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with paid solely from the Escrow AgreementAmount or Remaining Escrow Amount, as applicable; provided, however, that the limitation in the foregoing limitation clause shall not apply to (i) claims arising from the breach of any claim under Section 7.2(aFundamental Representation, (ii) claims arising from fraud or (iii) andclaims arising pursuant to Section 10.02(a)(iii), subject to clause (iii) below, Sellers which claims shall be jointly and severally liable for paid, at Purchaser’s election, from either or any combination of the amount of such claim up to a maximum of $8,000,000.
following: (iiiA) All claims for indemnification the Escrow Amount or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively Remaining Escrow Amount, as applicable, to the assets extent of Peninsula and any funds then remaining or (B) by each Seller severally in proportion to such Seller’s allocation percentage set forth on Annex A. Notwithstanding anything to the assets held contrary contained herein, in no event shall any Seller be obligated to make any payment pursuant to the Escrow Agreement (subject to the terms Section 10.02(a) in excess of the Escrow Agreement); provided, that portion of the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery Purchase Price received by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationSeller.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) below, each of the Sellers, Sellers will jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from , and against all Losses its Representatives and Affiliates (collectively, the "Buyer Indemnitees") for, and will pay to Buyer Indemnitees the monetary value of, any Adverse Consequences arising, directly or indirectly incurred indirectly, from or in connection with:
(a) any breach of any representation or warranty made by or sought to be imposed upon any of themSellers in this Agreement, the certificate delivered pursuant to Section 2.6(a)(vii), or any other certificate or document delivered by Sellers pursuant to this Agreement;
(b) any breach by any of the Sellers of any covenant or obligation in this Agreement, the certificate delivered pursuant to Section 2.6(a)(viii), or any other certificate or document delivered by Sellers pursuant to this Agreement;
(c) any Liabilities of any of Sellers existing at or arising out of a state of facts existing on or before the Closing Date, to the extent that such Liabilities are not reflected or reserved against in the Interim Balance Sheet, including Liabilities arising from or relating to:
(i) resulting from any product shipped or arising out of manufactured by, or any breach of any of the representations or warranties made by the Companyservices provided by, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with before the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofClosing Date;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the CompanyEnvironmental, the SellersHealth, or any of them pursuant to this Agreement; orand Safety Liabilities;
(iii) any risk or actual incidence of illness, disability, death or other injury to, or the contraction of any diseases by, any Person (including any Employee or former Employee) resulting from exposure to hazardous materials, products, or arising out other materials on or before the Closing Date, without regard to when such injuries or diseases are first manifested;
(d) any matter disclosed in Schedules 3.19 or 3.20;
(e) 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 any of Sellers (or any Person acting on such Seller's behalf) in connection with any of the Contemplated Transactions;
(f) any Claim relating to Employment Laws which may be made or brought or levied against Buyer, or which Buyer may suffer or incur, after the Closing Date, that are brought by or in respect of any claim described Employee, or by any Governmental Body on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice their behalf, to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of extent such Claim relates to the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after prior to the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000relates to any Employee who is not an Assumed Employee;
(g) any Retained Liability or Excluded Asset; and
(Bh) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant and all Proceedings or undertaking which by its terms is Claims incidental to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% any of the Purchase Price determined matters set forth in accordance with Section 11.2(a) through (g). Subject to the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under on indemnity set out in Section 7.2(a) (iii) and, subject to clause (iii) below11.5, Sellers shall be will also jointly and severally liable indemnify Buyer for the amount of such claim (the "Revenue Deficiency") by which, in the period between the Closing Date and June 30, 2002, the license revenues generated by the Business are less than $5,000,000. The Buyer will be indemnified for any Revenue Deficiency in an amount to be calculated according to the following formula, up to a maximum amount of $8,000,000.
500,000: Revenue Deficiency X $1,150,000 ------------------ $5,000,000 (iii) All claims For example, for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to a Revenue Deficiency of $1,000,000, the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms amount of the Escrow Agreement); providedindemnity would be equal to $230,000.) Sellers will also jointly and severally indemnify Buyer for losses sustained by the Buyer in the first year following Closing as a result of the voluntary termination of employment by any of the Assumed Employees, that the McIntyres including loss of actual or proposed license revenue, costs of hiring and Peninsula have entered into a Subrogation training of employees, lost opportunity costs, and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners customer Claims in respect of Peninsulaproducts licensed to, or agents thereofservices provided to, their successors and assigns, from any personal liability in connection with such claims for indemnificationcustomers.
Appears in 1 contract
Indemnification by Sellers. (a) Subject From and after the Closing, subject to the limitations in paragraph other terms and conditions of this Section 6, Xxxxx Xxx, Xxxxx Xxxx, Xxxxxxx Xxxx and Kingsoon Ong (btogether, the “Controlling Members”) below, each of the Sellersshall, jointly and severally agrees to severally, defend, reimburse, indemnify and hold harmless Buyer's Buyer and its respective Affiliates, shareholders, members, directors, managers, officers, employees and agents (each such Person being referred to as a “Seller Indemnified Persons from Party”; and collectively, the “Seller Indemnified Parties”), against and in respect of any and all Losses directly incurred or indirectly incurred sustained by, or imposed upon, any Seller Indemnified Parties based upon, arising out of or by or sought to be imposed upon any of themreason of:
(i) resulting from or arising out the failure of any breach representation or warranty of any of the representations or warranties made by the Companya Seller contained in this Agreement, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that except for the purpose of this Section 7.2, any qualification of such representations and warranties set forth in Section 4.3(b), to be true, correct and complete as of the date such representation or warranty was made and as of the Closing Date (other than a representation or warranty which, by reference to its express term, is made solely as of a specified date, the materiality of matters stated therein, and any limitations failure of such representations representation or warranty to be true, correct and warranties complete as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereofsuch specified date);
(ii) resulting from or arising out of any breach or non-performance of any covenant or agreement made by of a Seller set forth in this Agreement;
(iii) any Indebtedness for borrowed money of the Company, the Sellers, Company or any of them pursuant the Transaction Expenses, in each case to this Agreementthe extent not paid at Closing;
(iv) the failure of any representation or warranty of Sellers contained in Section 4.3(b) (without giving effect to any disclosures applicable thereto in the Disclosure Schedules) to be true, correct and complete as of the date such representation or warranty was made and as of the Closing Date; or
(iiiv) resulting from or arising out of any claim the matters described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more in Section 4.10 of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the period above shall commence on the date when such covenant or agreement should have been performedDisclosure Schedules.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow Agreement; provided, however, that the foregoing limitation shall not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) below, Sellers shall be jointly and severally liable for the amount of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnification.
Appears in 1 contract
Indemnification by Sellers. (a) Subject to the limitations in paragraph (b) belowterms and conditions of this Article XII, each of the Sellers, jointly and severally agrees to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them:
(i) resulting from or arising out of any breach of any of the representations or warranties made by the Company, Sellers or any of them in or pursuant to this Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or in connection with the Closing; provided, that for the purpose of this Section 7.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall be disregarded in determining any inaccuracy, untruth, incompleteness or breach thereof;
(ii) resulting from or arising out of any breach of any covenant or agreement made by the Company, the Sellers, or any of them pursuant to this Agreement; or
(iii) resulting from or arising out of any claim described on SCHEDULE 7.2(a)(iii).
(i) The Sellers shall have no liability under paragraph (a) unless one or more of the Buyer's Indemnified Persons gives written notice to the Sellers asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period set forth below:
(A) for claims under clauses (i) and (ii), until the earlier of one (1) year after the Closing Date or the date of release of Buyer's audited financial statements for the fiscal year ended September 30, 2000; and
(B) for claims under clause (iii), a period of five years after the Closing Date; except that, for but not before the Closing Date, Sellers shall jointly and severally indemnify, defend and hold harmless the Buyer Indemnitees from and against any claim based upon a covenant and all claims, actions, causes of action, demands, assessments, losses, damages, Liabilities, judgments, settlements, penalties, costs, and expenses (including reasonable attorneys’ and experts’ fees and expenses), of any nature whatsoever (collectively, “Damages”), asserted against, resulting to, imposed upon, or undertaking which incurred by its terms is the Buyer Indemnitees, directly or indirectly, by reason of or to be performed after the Closing, then the period above shall commence on the date when such covenant extent resulting from any breach of (i) Sellers’ representations and warranties contained in Articles III or agreement should have been performed.
(ii) The maximum amount for which the Sellers may be liable to all Buyer's Indemnified Persons pursuant to this Article 7 shall not be greater than 10% of the Purchase Price determined in accordance with the Escrow AgreementIV; provided, however, that for purposes of determining whether any such representation or warranty has been breached, any materiality qualifier contained therein shall be disregarded, or (ii) Sellers’ covenants and agreements contained in this Agreement.
(b) Subject to the foregoing limitation shall terms and conditions of this Article XII, from and after the Closing Date, but not apply to any claim under Section 7.2(a) (iii) and, subject to clause (iii) belowbefore the Closing Date, Sellers shall be jointly and severally liable for indemnify, defend and hold harmless the amount Buyer Indemnitees from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Buyer Indemnitees, directly or indirectly, by reason of such claim up to a maximum of $8,000,000.
(iii) All claims for indemnification or other recourse or legal action against Peninsula under this Article 7 shall be limited exclusively to the assets of Peninsula and extent resulting from or related to the assets held pursuant to the Escrow Agreement (subject to the terms of the Escrow Agreement); provided, that the McIntyres and Peninsula have entered into a Subrogation and Contribution Agreement and reciprocal Pledge Agreements dated the date hereof to assure their proportional contribution up to the $8,000,000 maximum amount, which agreements shall not be amended so as to reduce the assets available for recovery by Buyer's Indemnified Persons under clause (ii) without Buyer's consent. The Buyer hereby unconditionally releases the general and limited partners of Peninsula, or agents thereof, their successors and assigns, from any personal liability in connection with such claims for indemnificationExcluded Liabilities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Eagle Rock Energy Partners L P)
