Indemnification by the Sellers. Subject to Section 12.4, the Sellers agree to jointly and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses incurred or suffered by the Purchaser or its Affiliates to the extent arising out of any of the following: (a) any breach of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty; (b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date; (c) any Retained Obligation; (d) any Seller’s failure to comply with any Bulk Sales Laws; (e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or (f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Andrew Corp), Purchase and Sale Agreement (Commscope Inc)
Indemnification by the Sellers. (a) Subject to Section 12.4the provisions of this Article VII, effective as of and after the Closing, the Sellers agree to shall, jointly and severally indemnify the severally, indemnify, defend and hold harmless Purchaser, its AffiliatesAffiliates and its Representatives (collectively, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a the “Purchaser Indemnified PartyParties”) against, who are express and agrees to hold the Purchaser intended third party beneficiaries of this Article VII), from and its Affiliates harmless from, against any and all Covered Losses which are incurred or suffered by the Purchaser or its Affiliates to the extent arising out of any of the following:
Purchaser Indemnified Parties or to which any of the Purchaser Indemnified Parties may otherwise become subject (aregardless of whether or not such Covered Losses relate to any Third Party Claim) and which arise from or as a result of (i) any breach or inaccuracy of or any inaccuracy in any representation or warranty made by of the Sellers contained in Article III; (ii) any Seller breach or nonperformance of any covenant or agreement of the Sellers contained in this Agreement or Agreement; (iii) any breach Retained Liabilities; (iv) the operation of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Business prior to the Closing; providedor (v) any Designated Third Party Claim.
(b) Notwithstanding any other provision to the contrary, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) except in the case of all representations and warranties except for Benefit and Environmental Warrantiesfraud or willful breach:
(i) The Sellers shall not be required to indemnify, Tax Warranties and Title and Authorization Warrantiesdefend or hold harmless any Purchaser Indemnified Party against, a written notice or reimburse any Purchaser Indemnified Party for, any Covered Losses pursuant to Section 7.2(a)(i) until the aggregate amount of the Purchaser Indemnified Party’s Parties’ Covered Losses under Section 7.2(a)(i) exceeds $150,000 (the “Threshold”), and then only to the extent the aggregate amount of all such Covered Losses exceeds the Threshold;
(ii) the cumulative indemnification obligation of the Sellers under Section 7.2(a)(i) (other than in connection with Seller Fundamental Representations or the representations and warranties made under Section 3.11) shall in no event exceed $3,500,000 (the “Cap”);
(iii) the cumulative indemnification obligation of the Sellers under Section 7.2(a)(i) (only in connection with the Seller Fundamental Representations and the representations and warranties made under Section 3.11) shall in no event exceed the Purchase Price actually received; and
(iv) the cumulative indemnification obligations of the Sellers under Section 7.2(a)(v) shall in no event exceed $2,250,000, and shall terminate upon the expiration or invalidation of the ‘888 Patent (for the avoidance of doubt, including all foreign counterparts thereof); provided that the indemnification obligations of the Sellers under Section 7.2(a)(v) shall not so terminate with respect to any unresolved claim is thereunder if notice of such claim shall have been given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensestime.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Thoratec Corp)
Indemnification by the Sellers. (a) Subject to Section 12.410.01, the Sellers agree to jointly indemnify, defend and severally indemnify the Purchaserhold harmless Buyer, its Affiliates, affiliates and their respective shareholders, directors, officers, shareholderspartners, agents and employees, and their respective heirsagents, successors and assigns (each, a “Purchaser "Seller Indemnified Party”"), from and against all losses, damages, liabilities, deficiencies or obligations, including, without limitation, all claims, actions, suits, proceedings, demands, judgments, assessments, fines, interest, penalties, costs and expenses (including, without limitation, settlement costs and reasonable legal fees) against(collectively, "Losses") to which they may become subject as a direct result of (x) the Excluded Liabilities, (y) any and all misrepresentations or breaches of a representation or warranty of the Sellers herein or the nonperformance or breach of any covenants or agreements of the Sellers contained herein, or (z) the ownership and operation of the Acquired Assets and the CATV Business before the Closing.
(b) Any obligations of the Sellers under the provisions of this Article 10 shall be paid promptly to a Seller Indemnified Party by a Seller and shall represent a retrospective adjustment to the Purchase Price. The amount of such payment (and adjustment) shall be an amount in cash equal to the amount of the Loss incurred by a Seller Indemnified Party on account of the matter for which indemnification is required hereunder less any payments made or to be made to the Seller Indemnified Party under any insurance, indemnity or similar policy or arrangement. Notwithstanding anything contained herein to the contrary, the indemnification provided above shall only apply to the extent that, and not until, the aggregate of all amounts subject to indemnification under this Section 10.02 and Section 10.02 of the Agreement and Plan of Reorganization exceeds $10 million (in which event Buyer shall be entitled to indemnification as provided herein for all such Losses and not just the excess over $10 million) and as to any particular indemnity claim or series of related indemnity claims only to the extent that, and only if, such indemnity claim or series of related indemnity claims equals or exceeds $100,000. In any event, the maximum aggregate amount that the Sellers will be required to pay under this Section 10.02 and that Holdings will be required to pay under Section 10.02 of the Agreement and Plan of Reorganization in respect of all claims by all parties under both agreements is $100 million.
(c) In the event that Sellers elect to proceed to Closing at any time that approvals and consents of Governmental Authorities to transfer franchises which represent less than 90% of the Combined Basic Subscribers shall not have been obtained, and prior to Closing Buyer gives written notice to Sellers that Buyer desires not to proceed to Closing, Sellers agree to indemnify, defend and hold harmless the Seller Indemnified Parties, from and against all losses, damages, liabilities, deficiencies or obligations including, without limitation, all Losses to which they may become subject as a result of such election.
(d) In no event will a claim to be indemnified by Holdings under the Agreement and Plan of Reorganization be entitled to indemnification by Sellers under this Agreement. Buyer further acknowledges and agrees that, should the Closing occur, its sole and exclusive remedy with respect to hold any and all claims relating to this Agreement and the Purchaser transactions contemplated hereby shall be pursuant to the indemnification provisions set forth in this Section 10.02. In furtherance of the foregoing, Buyer hereby waives, from and its Affiliates harmless fromafter the Closing, to the fullest extent permitted under applicable law, any and all Losses incurred rights, claims and causes of action it may have against Holdings and its affiliates arising under or suffered by the Purchaser based upon any Federal, state, local or its Affiliates foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the extent arising out of any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller indemnification provisions set forth in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day10.02), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (CSC Holdings Inc), Asset Purchase Agreement (Adelphia Communications Corp)
Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, the Sellers agree to jointly shall indemnify, defend and severally indemnify hold harmless the Purchaser, Buyer and its Affiliates, Affiliates and their respective officers, directors, officers, shareholdersemployees, agents and employeesrepresentatives (collectively, and their respective heirs, successors and assigns (each, a the “Purchaser Buyer Indemnified PartyParties”) against, and agrees to hold the Purchaser and its Affiliates harmless fromreimburse any Buyer Indemnified Party for, any and all Losses incurred that such Buyer Indemnified Party may at any time suffer or suffered by the Purchaser incur, or its Affiliates to the extent arising out become subject to, as a result of any of the followingor in connection with:
(ai) any the inaccuracy or breach of any representations or any inaccuracy in any representation or warranty warranties made by any Seller the Sellers in this Agreement or in the certificates furnished by the Sellers pursuant to Sections 2.05(e) and 7.03(a);
(ii) any breach or failure by the Sellers to perform any of their covenants or obligations contained in this Agreement; or
(iii) any inaccuracy Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any representation Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the contrary, (i) the Sellers shall not be required to indemnify, defend or warranty made by hold harmless any Seller Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds a dollar amount equal to $300,415.63 (the “Deductible Amount”), after which the Sellers shall be obligated for all Losses of the Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in any Related Agreement or any document delivered by such Person at excess of the ClosingDeductible Amount up to a dollar amount equal to $3,004,156.32; provided, however, that no Seller shall have liability under the limitations on indemnification set forth in this Section 12.2(a9.02(b)(i) for shall not apply to any indemnification claim brought as a result of the inaccuracy or breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, Fundamental Representation; (ii) in the case of Benefit and Environmental Warranties, a written notice cumulative indemnification obligation of the Purchaser Indemnified Party’s claim is given to Sellers under Section 9.02(a)(i) shall in no event exceed the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, Purchase Price; and (iii) in the case of Tax Warranties, a written notice indemnification obligation of the Purchaser Indemnified Party’s claim is given Sellers under Section 9.02(a)(i) with respect to a breach of Section 3.22 (Tax Matters) shall not be subject to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDeductible Amount.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4, the The Sellers agree to hereby jointly and severally agree to defend, indemnify the Purchaserand hold Purchaser and its officers, its Affiliates, and their respective directors, officers, shareholders, agents and employees, affiliates and their respective heirs, successors and assigns (eachfor purposes of this Section 10.2, a “Purchaser Indemnified Party”collectively, the "Purchaser") against, harmless from and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses incurred losses, liabilities (accrued, absolute, contingent or suffered otherwise), suits, proceedings, demands, settlements, judgments, fines, assessments, damages, expenses and costs (including reasonable attorneys' fees and litigation expenses) (collectively, the "Indemnifiable Damages") which Purchaser may suffer or incur by reason of, or which may arise out of: (i) the Purchaser or its Affiliates to the extent arising out inaccuracy of any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to Sellers contained in this Agreement; (ii) the breach by the Sellers no later than of any of the close covenants, warranties or agreements made by them in this Agreement; (iii) any claim for payment of business on any liability of the date that is eighteen Sellers not specifically assumed by the Purchaser pursuant hereto; or (18iv) months after any legal obligation to remediate any environmental condition resulting from the Sellers' operation of the Property prior to the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; providedhowever, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply only be liable with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant respect to any LawIndemnifiable Damages if the aggregate Indemnifiable Damages, which Taxes relate to an event singly or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, equal or exceed $10,000 and then only to the extent of any such excess. In no event shall the Sellers be obligated under this Section to indemnify Purchaser to the extent any claim results from Purchaser's gross negligence or willful misconduct. In no event shall only the Sellers be obligated to indemnify Purchaser for such costs and expenses Indemnifiable Damages in excess of the Purchase Price. Not withstanding anything contained in this Section 10 to the extent that contrary, Purchaser obtains Andrew’s prior written consentshall have the right to set off, not against amounts due under the Promissory Note, any amounts due or claimed in good faith to be unreasonably withheld, prior due to incurring such costs and expensesPurchaser under this Section 10 or Section 11.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4the limitations set forth herein, by approval and adoption of this Agreement, the Sellers agree to jointly indemnify X-ceed severally for such Seller's pro rata portion (based upon the number of Shares held by such Seller immediately prior to the Closing Date relative to the total number of shares of Shares outstanding immediately prior to the Closing Date) of claims, losses, liabilities, damages, deficiencies, costs and severally indemnify the Purchaserexpenses, its Affiliatesincluding reasonable attorneys' fees and expenses, and their respective directors, officers, shareholders, agents expenses of investigation and employees, and their respective heirs, successors and assigns defense (each, calculated after deduction for insurance proceeds recovered or recoverable) incurred by X-ceed directly or indirectly as a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses incurred or suffered by the Purchaser or its Affiliates to the extent arising out result of any of the following:
(a) any inaccuracy or breach of or any inaccuracy in any a representation or warranty made of the Sellers contained herein (hereinafter individually a "X-ceed Loss" and collectively "X-ceed Losses"). The right of X-ceed after the ^ ^ Closing Date to assert indemnification claims and receive indemnification payments from the Sellers pursuant to this Article VI shall be the sole and exclusive right and remedy exercisable by such parties with respect to any Seller unintentional inaccuracy or breach in any representation, warranty, or covenant contained in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related instrument delivered pursuant to this Agreement or any document delivered by such Person at in connection with the Closingtransactions contemplated hereby; provided, that no Seller however, this section shall have liability under this Section 12.2(a) for not apply to any misrepresentation or breach of or inaccuracy in any representation or warranty of which the Sellers had actual knowledge or any intentional failure to perform or comply with any agreement to which intentional acts and knowing misrepresentations the Sellers shall be liable for all X-ceed Losses with respect thereto. X-ceed may not receive any indemnification from the Sellers unless and until a Claim Notice (ias defined in Section 6.4 below) in identifying X-ceed Losses, the case aggregate cumulative amount of all representations and warranties except for Benefit and Environmental Warrantieswhich exceed five hundred thousand dollars ($500,000), Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given have been delivered to the Sellers no later as provided in Section 6.4; in such case, X-ceed may recover from the Sellers the entire amount of the cumulative X-ceed Losses. The obligations of the Sellers to indemnify and hold harmless X-ceed shall also apply to any action, claim or suit which arises from the operations of Water Street prior to the Closing Date, to the extent that the aggregate cumulative amount of Water Street's liability thereunder is in excess of five hundred thousand dollars ($500,000) and is not covered by insurance and to the extent that such action, claim, suit or matter is not disclosed in this Agreement or the Schedules attached hereto. The Sellers shall not be obligated to indemnify X-ceed for any claim asserted more than the close of business on the date that is eighteen sixteen (1816) months after the Closing Date, (ii) in . In the case event of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if any such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the third party claim, the nature of the claim andprocedure set forth in Section 6.4 below shall apply, so far as practicable, the amount claimed; provided, further, except that no Seller settlement shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at be effective without the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period Sellers' consent and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesapproval.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4, The Sellers shall indemnify and hold harmless the Sellers agree to jointly Buyer from and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses incurred or suffered by the Purchaser or its Affiliates to the extent losses, Liabilities, claims, damages, penalties, fines, judgments, awards, settlements, Taxes, loss of Tax benefits, reasonable costs, reasonable fees, reasonable expenses (including, without limitation, reasonable attorneys’ fees) and reasonable disbursements (collectively, “Losses”) based upon, arising out of or otherwise in respect of: (i) any inaccuracies in or any breach of any representation or warranty of the following:
Sellers contained in this Agreement (aincluding those set out in any schedule or exhibit attached hereto); (ii) any breach of any covenant or any inaccuracy in any representation agreement of the Sellers or warranty made by any the Seller Representative contained in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations including those set out in any Related Agreement schedule or exhibit attached hereto); (iii) any document delivered by such Seller at Indebtedness of the Closing; providedAcquired Companies, that the Sellers shall have no liability under this Section 12.2(b) for any such breach Selling Expenses or failure occurring Employee Payments not fully paid on or prior to the Closing Date unless a written notice or not included in the computation of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen Purchase Price; (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(eiv) all Taxes (or the nonpayment thereof) of Skyware the Acquired Companies for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, ; and (iiv) any and all Taxes those matters set forth on Schedule 11.1(a)(v). The Sellers’ liability with respect to the Losses of any Person the Buyer shall be as follows: (other than SkywareA) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and Losses are related solely to either a breach by one or more Sellers of a representation and warranty in Article 4 or a covenant made by such Seller, each Seller’s liability shall be several but not joint with respect to the extent incurred prior and in order to obtain portion of the GES Final Acceptance (as Losses caused by such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, Seller’s breach and (iiB) if such out of pocket costs and expenses exceed $50,000 in the aggregatefor all other matters for which a Buyer may seek indemnification under this Article 11, the Sellers Sellers’ liability shall only be obligated to indemnify Purchaser for of a several but not joint nature based on such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesSellers’ Participation Percentage.
Appears in 1 contract
Samples: Securities Purchase Agreement (Entravision Communications Corp)
Indemnification by the Sellers. Subject to Section 12.4, the Sellers agree to jointly (a) The Purchaser and severally indemnify the Purchaser, its Affiliates, and their respective officers, directors, officers, shareholders, agents and employees, and their respective heirsagents, successors and assigns (each, each a “Purchaser Indemnified Party”) against, shall be indemnified and agrees to hold held harmless by the Purchaser Sellers for and its Affiliates harmless from, against any and all Losses Liabilities, losses, diminution in value, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, attorneys’ and consultants’ fees and expenses) actually suffered or incurred by them (including, without limitation, any Action brought or suffered otherwise initiated by the Purchaser or its Affiliates to the extent any of them) (hereinafter a “Loss”), arising out of any of the followingor resulting from:
(ai) any the breach of or any inaccuracy in any representation or warranty made by any Seller the Company or the Sellers contained in this Agreement or any Agreement, which breach occurs during the period of or any inaccuracy in any effectiveness of such representation or warranty made by any Seller (as provided in any Related Agreement or any document delivered by such Person at the ClosingSection 11.01(a) above); provided, however, that no Seller for the purposes of determining whether a breach has occurred or calculating and determining the amount of the Loss with respect to any such breach, all references to materiality, Material Adverse Effect or similar qualifiers shall have liability be disregarded; or
(ii) the breach of any covenant or agreement by the Company or Sellers contained in this Agreement, which breach occurs during the period of effectiveness of such covenant or agreement (as provided in Section 11.01(a) above).
(b) A Purchaser Indemnified Party shall give the Sellers’ Representative notice of any matter which a Purchaser Indemnified Party has determined has given rise to a right of indemnification under this Agreement prior to the expiration of the period of effectiveness of the applicable representation, warranty, covenant or agreement (as provided in Section 12.2(a11.01(a) above (even if recovery is barred under Section 11.04(a) hereof)), stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and Liabilities of the Sellers under this Article XI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article XI (“Third Party Claims”) shall be governed by and be contingent upon the following additional terms and conditions: if a Purchaser Indemnified Party shall receive notice of any breach Third Party Claim, the Purchaser Indemnified Party shall give the Sellers’ Representative notice of such Third Party Claim within 20 days of the receipt by the Purchaser Indemnified Party of such notice; provided, however, that the failure to provide such notice shall not release the Sellers from any of their obligations under this Article XI except to the extent that the Sellers are materially prejudiced by such failure and shall not relieve the Sellers from any other obligation or inaccuracy Liability that it may have to any Purchaser Indemnified Party otherwise than under this Article XI. If the Sellers dispute in writing their obligation to indemnify the Purchaser Indemnified Party hereunder against any representation Losses that may result from the Third Party Claim, the parties shall promptly proceed to resolve such dispute in accordance with Section 13.08 hereof. If the Sellers acknowledge in writing their obligation to indemnify the Purchaser Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Sellers shall be entitled to assume and control the defense of such Third Party Claim at their expense and through counsel of their choice if the Sellers’ Representative gives notice of its intention to do so to the Purchaser Indemnified Party within 30 days of the receipt of such notice from the Purchaser Indemnified Party; provided, however, that if there exists or warranty unless (i) is reasonably likely to exist a conflict of interest that would make it inappropriate in the case judgment of the Purchaser Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Purchaser Indemnified Party and the Sellers, then the Purchaser Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Purchaser Indemnified Party determines counsel is required, at the expense of the Sellers. In the event that the Sellers exercise the right to undertake any such defense against any such Third Party Claim as provided above, the Purchaser Indemnified Party shall cooperate with the Sellers in such defense and make available to the Sellers’ Representative, at the Sellers’ expense, all representations witnesses, pertinent records, materials and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of information in the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of possession or under the Purchaser Indemnified Party’s claim control relating thereto as is given to reasonably required by the Sellers. Similarly, in the event the Purchaser Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Sellers no later than shall cooperate with the close of business on the three (3) year anniversary of the Closing Date, Purchaser Indemnified Party in such defense and (iii) in the case of Tax Warranties, a written notice of make available to the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; providedSellers’ expense, that all such witnesses, records, materials and information in the Sellers shall have no liability Sellers’ possession or under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of Sellers’ control relating thereto as is reasonably required by the Purchaser Indemnified Party’s claim is sent to . No such Third Party Claim may be settled by either the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before Purchaser Indemnified Party without the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesconsent of the other party.
Appears in 1 contract
Samples: Unit Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Indemnification by the Sellers. Subject to Section 12.4Each of the Sellers, the Sellers agree to jointly and severally indemnify the Purchaserseverally, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and hereby agrees to indemnify and hold the Purchaser and its Affiliates affiliates, subsidiaries, parent companies, directors, officers, agents and employees harmless from, (subject to the terms of this Article 5) from and against any and all Losses incurred or suffered by the Purchaser or its Affiliates to the extent damages, losses, liabilities, deficiencies, costs and/or expenses (including all reasonable legal fees, expenses and other out-of-pocket costs) (collectively, “Damages”) resulting from, arising out of or in connection with (i) any misrepresentation or breach of any warranty, representation, covenant or agreement made by any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller Sellers in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes Liability of any Person (of the Sellers other than Skyware) imposed on Skyware as a transferee or successorthe Assumed Liabilities, by contract or pursuant to including any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out Liability of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely any Seller arising prior to the extent that such obligations were necessary for Closing. Any indemnification obligation of the GES Development (as such term is defined Sellers hereunder shall be payable in cash; provided that, at the WildBlue Agreement) under such agreement and solely to option of the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that Purchaser,
(i) Purchaser shall cooperate in good faith with Sellers in order Sellers' financial obligations (for a Material Claim) may be satisfied by terminating payments of Specified Debt and those under 2(ii), (iii) and (iv) of the Note (not the payments under Section 2(i) of the Note) and/or by delivery of any payments due under Section 2(i) of the Note and/or any Specified Debt to minimize such out of pocket costs and expensesan escrow agent, and subject to mediation, in the manner described in the following clause and
(ii) if the Sellers' indemnification obligations (relating to any matter other than a Material Claim) may be settled by the following procedure: If Purchaser has submitted a Damage Claim Notice with respect to Damages which are not yet due and payable as of the date of payment of any amounts due and owing under the Note, Purchaser shall deliver to a mutually-acceptable escrow agent, such out portion of pocket costs such payment as Purchaser deems reasonably necessary to satisfy such Damages in full, in each instance regardless of whether the Seller's obligation to pay or the amount of such Damages is in dispute. The parties will then submit the matter to Mediation Inc., One Financial Plaza, 18th Floor, 000 XX 0xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, or its successor, or such other mediator as may be mutually acceptable to the parties for resolution of the matter (with the Purchaser, on one hand, and the Sellers, on the other hand, equally sharing the expenses exceed $50,000 of the mediator). In the event the mediator is unable to achieve a resolution of the matter within 60 days, either party may file a claim in any court of competent jurisdiction within Broward County, Florida with respect to the aggregatematter. Upon a final determination with respect to such Damages, the Sellers shall only any escrowed amounts will be obligated returned to indemnify Purchaser to pay for such costs Damages, and expenses any excess escrowed amounts shall be promptly released to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesSellers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diversified Health & Fitness Inc)
Indemnification by the Sellers. Subject to Section 12.4(a) The Sellers, the Sellers agree to jointly and severally severally, shall indemnify and hold the Purchaser, its AffiliatesPurchasers, and each of their respective directorsAffiliates, officers, shareholdersdirectors, agents and employees, and their respective heirs, successors and assigns (each, each a “Purchaser Purchasers Indemnified Party”) against, harmless from and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses Liabilities, losses, damages, claims, fees, expenses, awards, judgments and penalties actually incurred by them (hereinafter a “Loss”), as resulting from the breach of any representation, warranty, covenant or suffered agreement made by the Purchaser Company or its Affiliates to the extent arising out of any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) a Shareholder contained in the case of all Acquisition Documents (it being understood that such representations and warranties except for Benefit and Environmental Warrantiesshall be interpreted without giving effect to any limitations or qualifications as to “materiality” (including the word “material”) or “Company Material Adverse Effect” set forth therein). In addition, the Sellers shall indemnify the Purchasers Indemnified Parties against any Tax Warranties and Title and Authorization Warranties, a written notice liabilities of the Purchaser Indemnified Party’s claim is given Company resulting from any possible failure by it to withhold all Taxes required to be withheld on behalf of its employees, and any PRC social security and welfare payments the Company may have failed to contribute on behalf of its employees prior to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing DateClosing, (ii) but only in the case of Benefit amount as assessed or collected by the Governmental Authorities, including, without limitation, the overdue amounts, any interests and Environmental Warrantiespenalties. To the extent that the Sellers’ undertakings set forth in this Section 8.2 may be unenforceable, a written notice of the Purchaser Indemnified Party’s claim Shareholder1 shall contribute the maximum amount that it is given permitted to contribute under applicable Law to the Sellers no later than payment and satisfaction of all Losses incurred by the close of business on Purchasers Indemnified Parties. The accumulative Shareholders Indemnification Payments shall not exceed all payment the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given Sellers/Shareholders entitled to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;Agreement.
(b) A Purchasers Indemnified Party shall give the Shareholder1 notice of any breach matter which a Purchasers Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within 30 days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or failure by arises. The obligations and Liabilities of the Sellers under this Article VIII with respect to Losses arising from claims of any Seller third party (for the avoidance of doubt, the third party under this Section 8.2(b) does not include the Purchasers Indemnified Party) which are subject to perform any of its covenants or obligations set out the indemnification provided for in this Agreement or Article VIII (“Third Party Claims”) shall be governed by and be contingent upon the following additional terms and conditions: if a Purchasers Indemnified Party shall receive notice of any breach Third Party Claim, the Purchasers Indemnified Party shall give the Shareholder1 notice of or failure such Third Party Claim within ten (10) days of the receipt by any Seller the Purchasers Indemnified Party of such notice. If the Purchasers Indemnified Party fails to perform its covenants or obligations set out provide such notice within ten (10) days as required under this Section 8.2(b), and if and only if the Sellers submit sufficient proof satisfactory to the Purchasers that a certain portion of the Losses would not have incurred had the Purchasers Indemnified Party provided such notice within ten (10) days as required hereunder, the Purchasers, in any Related Agreement or any document delivered by their sole discretion, may waive their right of indemnification with respect to such Seller at portion of the ClosingLosses; provided, however, that the failure to provide such notice by the Purchasers Indemnified Party hereunder shall not release the Sellers shall have no liability from any of their obligations under this Section 12.2(b) Article VIII and shall not relieve the Sellers from any other obligation or Liability that it may have to any Purchasers Indemnified Party otherwise than under this Article VIII. If the Sellers acknowledge in writing its obligation to indemnify the Purchasers Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Shareholders shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Purchasers Indemnified Party within five days of the receipt of such notice from the Purchasers Indemnified Party; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Purchasers Indemnified Party for the same counsel to represent both the Purchasers Indemnified Party and the Sellers, then the Purchasers Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Purchasers Indemnified Party determines counsel is required. In the event the Purchasers Indemnified Party is, directly or indirectly, conducting the defense against any such breach or failure occurring on or prior Third Party Claim, the Seller shall cooperate with the Purchasers Indemnified Party in such defense and make available to the Closing Date unless a Purchasers Indemnified Party all such witnesses, records, materials and information in the Sellers’ possession or under the Sellers’ control relating thereto as is reasonably required by the Purchasers Indemnified Party. No such Third Party Claim may be settled by the Sellers without the prior written notice consent of the Purchaser Purchasers Indemnified Party’s claim is sent to , but such prior written consent shall not be unreasonably withheld by the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;Purchasers Indemnified Party.
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or In the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as event that a transferee or successor, by contract or Purchasers Indemnified Party claims an indemnification payment is due pursuant to any LawSection 8.2(a), which Taxes relate the Purchaser may withhold a portion of a Deliverable Amount of Payment2 that is otherwise due pursuant to an event or transaction occurring on or before Section 2.5(a) until the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely dispute with respect to the extent that such obligations were necessary for the GES Development (as such term indemnifiable Loss is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesresolved.
Appears in 1 contract
Indemnification by the Sellers. Subject (a) After the Closing Date and subject to Section 12.4the limitations set forth herein, (i) the Sellers shall indemnify and hold harmless Buyer, the Sellers agree to jointly Company and severally indemnify the Purchaser, its Affiliates, Company Subsidiary from and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses incurred by Buyer, the Company or suffered by the Purchaser Company Subsidiary in connection with or its Affiliates to the extent arising out of any of the following:
from: (ax) any breach of any warranty or any the inaccuracy in of any representation of the Company or warranty made by any Seller the Sellers contained in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing DateAgreement, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(by) any breach of by the Company or the Sellers of, or failure by any Seller the Company or the Sellers to perform perform, any of its covenants or obligations set out contained in this Agreement (determined in all cases under clauses (x) and (y) as if the limitations by the terms “material” or “materially”, or any breach of derivation thereof, were not included therein or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; providedSchedules related thereto), that the Sellers shall have no liability under this Section 12.2(band (z) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is actions taken within eighteen (18) months after of the Closing Date to ensure that the Company’s and the Company Subsidiary’s operations are conducted in substantial compliance with Firearms Regulations; provided, however, that:
(i) The Sellers shall be required to indemnify and hold harmless under clauses (x) and (z) of this Section 10.1(a), with respect to Losses only to the extent that: (A) the amount of the Losses related to each individual claim or series of related claims arising out of the same facts, events or circumstances exceeds Twenty-Five Thousand Dollars ($25,000) which shall not be applied against the Threshold Amount; and (b) the aggregate amount of such Losses exceed Five Hundred and Twenty Thousand Dollars ($520,000) (the “Threshold Amount”), in which event Buyer shall be entitled to claim indemnity for the full extent of such Losses related to individual claims or series of related claims arising out of the same facts, events or circumstances exceeding $25,000;
(A) The aggregate amount required to be paid by the Sellers under clause (z) of this Section 10.1(a) shall not exceed an amount equal to Two Hundred Thousand Dollars ($200,000) and (B) the aggregate amount required to be paid by the Sellers collectively under clauses (x) and (z) of this Section 10.1(a) shall not exceed an amount equal to Five Million Two Hundred Thousand Dollars ($5,200,000); provided, however, that the limitations set forth in this clause (ii) and in clause (i) above shall not apply to a claim pursuant to Section 10.1 relating to (A) any breach of any warranty or the inaccuracy of any representation set forth in Section 3.1 (Sellers Authority and Enforceability), Section 4.2 (Authority and Enforceability), Section 4.4 (Capitalization) or Section 4.8 (Taxes) or (B) any breach of any warranty or the inaccuracy of any representation that constitutes fraud; and
(iii) Each Seller shall be severally liable in accordance with their pro rata share of the Escrow Amount, until the release of the escrow funds, if any remaining, in accordance with the terms and provisions of the Escrow Agreement. After such release of any escrow funds, each Seller shall be severally liable for all Losses, as determined based on the percentage of the total number of Shares held by such Seller as set forth on Schedule 1.1, for all Losses subject to the limitations set forth in clauses (i) and (ii) above.
(b) After the Closing Date;, the Sellers will indemnify and hold harmless Buyer, the Company and the Company Subsidiary, from and against any Expense Amount or Management Amount not set forth in the Expense Statement.
(c) For purposes of Section 10.1(a)(z), Losses shall include any Retained Obligation;
expenses incurred or paid by the Company (dwhich shall not include any allocation for time spent by the Company’s or the Company Subsidiary’s employees) any Seller’s failure to comply in connection with any Bulk Sales Laws;
(e) all Taxes (or actions taken since July 1, 2007 to ensure that the nonpayment thereof) of Skyware for any Pre-Closing Tax Period Company’s and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined Company Subsidiary’s operations are conducted in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith substantial compliance with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesFirearms Regulations.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, the Sellers agree to jointly shall indemnify, defend and severally indemnify hold harmless the Purchaser, Buyer and its Affiliates, Affiliates and their respective officers, directors, officers, shareholdersemployees, agents and employeesrepresentatives (collectively, and their respective heirs, successors and assigns (each, a the “Purchaser Buyer Indemnified PartyParties”) against, and agrees to hold the Purchaser and its Affiliates harmless fromreimburse any Buyer Indemnified Party for, any and all Losses incurred that such Buyer Indemnified Party may at any time suffer or suffered by the Purchaser incur, or its Affiliates to the extent arising out become subject to, as a result of any of the followingor in connection with:
(ai) any the inaccuracy or breach of any representations or any inaccuracy in any representation or warranty warranties made by any Seller the Sellers in this Agreement or in the certificates furnished by the Sellers pursuant to Sections 2.05(d) and 7.03(a);
(ii) any breach or failure by the Sellers to perform any of their covenants or obligations contained in this Agreement; or
(iii) any inaccuracy Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any representation Excluded Liability).
(b) Notwithstanding any other provision to the contrary, (i) the Sellers shall not be required to indemnify, defend or warranty made by hold harmless any Seller Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds a dollar amount equal to $124,308.70 (the “Deductible Amount”), after which the Sellers shall be obligated for all Losses of the Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in any Related Agreement or any document delivered by such Person at excess of the ClosingDeductible Amount up to a dollar amount equal to $1,243,087.03; provided, however, that no Seller shall have liability under the limitations on indemnification set forth in this Section 12.2(a9.02(b)(i) for shall not apply to any indemnification claim brought as a result of the inaccuracy or breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, Fundamental Representation; (ii) in the case of Benefit and Environmental Warranties, a written notice cumulative indemnification obligation of the Purchaser Indemnified Party’s claim is given to Sellers under Section 9.02(a)(i) shall in no event exceed the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, Purchase Price; and (iii) in the case of Tax Warranties, a written notice indemnification obligation of the Purchaser Indemnified Party’s claim is given Sellers under Section 9.02(a)(i) with respect to a breach of Section 3.22 (Tax Matters) shall not be subject to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDeductible Amount.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4, the Sellers agree to jointly and severally indemnify the Purchaseragree to indemnify, its Affiliates, defend and their respective directors, officers, shareholders, agents hold Buyer harmless from and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses damages, losses, liabilities, costs and expenses (including, without limitation, reasonable expenses of investigation and reasonable attorneys' fees and expenses in connection with any action, suit or proceeding, (collectively, "Damages") incurred or suffered by the Purchaser or its Affiliates to the extent Buyer arising out of any of the following:
(ai) any breach of any representation, warranty, covenant or agreement of Sellers to any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Datethird party, (ii) any breach of any representation, warranty, covenant or agreement of Sellers contained in the case of Benefit and Environmental Warrantiesthis Agreement, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) any other liabilities, claims, or damages of or against Sellers that relate to any period prior to the Closing, including, but not limited to, liabilities for products liability or breach of warranty claims arising from or relating to any products sold or distributed, or services provided, by Sellers prior to the Closing, and any liabilities relating to environmental matters. The foregoing notwithstanding, Buyer shall not be entitled to indemnification with respect to Damages suffered or incurred under (i) or (iii) above until such Damages exceed $100,000 in the case of Tax Warranties, a written notice of aggregate (the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day"Indemnification Threshold"), in each which case with each such notice specifying (Buyer shall be entitled to recovery of all Damages without deduction for the Indemnification Threshold. Further, in reasonably sufficient detail) no event shall Sellers indemnification obligations hereunder exceed the matter giving rise Purchase Price actually paid to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that Sellers. In no event shall Seller shall have any liability under this Section 12.2(a) be liable to Buyer for any breach of punitive, special, indirect, consequential or inaccuracy in a Real Property Title Warranty;
incidental losses or damages, whether foreseeable or not (bincluding without limitation lost revenues, goodwill or profits) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, arising out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue this Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Covista Communications Inc)
Indemnification by the Sellers. Subject to Section 12.4, the Sellers agree to jointly (a) The Purchaser and severally indemnify the Purchaser, its Affiliates, and their respective officers, directors, officers, shareholders, agents and employees, and their respective heirsagents, successors and assigns (each, a “Purchaser Indemnified Party”) against, shall be indemnified and agrees to hold the Purchaser and its Affiliates held harmless from, any and all Losses incurred or suffered by the Purchaser Sellers, on a joint and several basis, for and against all losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including reasonable attorneys’ and consultants’ fees and expenses) actually suffered or its Affiliates to the extent incurred by it (hereinafter, a “Loss”), arising out of any of or resulting from: (i) the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller the Sellers contained in this Agreement or in any certificates delivered hereunder, (ii) the breach of any covenant or any inaccuracy agreement by the Sellers contained in any representation or warranty made by any Seller in any Related this Agreement or (iii) any document delivered by such Person at Excluded Taxes or Excluded Liabilities.
(b) Notwithstanding anything to the Closing; providedcontrary in this Agreement (including the first clause of Section 3.07(c)), that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless if (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on extent an event has occurred after the date that is eighteen (18) months after hereof but on or prior to the Closing Date, (ii) such event, individually or in the case of Benefit and Environmental Warrantiesaggregate, has had, or is reasonably likely to result in, a written notice of Material Adverse Effect after the date hereof, (iii) the Purchaser Indemnified Party’s claim is given to the Sellers has no later than the close actual knowledge of business such event or does not reasonably believe on the three (3) year anniversary of the Closing DateDate that such event will result in a Material Adverse Effect, and (iiiiv) the Closing occurs, then the Purchaser shall be entitled (subject to the limits on indemnification set forth in this Article VIII) to be indemnified against any Loss arising from such event under Section 3.07(c), but for the purposes of this Section 8.02(b) the phrase “as of the date hereof” in Section 3.07(c) shall be deemed to have been deleted and not applicable to such Section. For the avoidance of doubt, this Section 8.02(b) shall not affect or otherwise limit the Purchaser’s ability to seek indemnification for any Losses it may incur under any other representation or warranty contained in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document the certificates delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;thereunder.
(c) Notwithstanding anything to the contrary in this Agreement, to avoid the double counting of Losses, the Purchaser shall not be deemed to have incurred any Retained Obligation;Loss to the extent such Loss was reflected in the Closing Working Capital Statement.
(d) any SellerNotwithstanding anything to the contrary in this Agreement, the representations and warranties made by the Sellers in Section 3.06(e) shall not be subject to the limits on indemnification set forth in this Article VIII. In respect of such representations Table of Contents STRICTLY CONFIDENTIAL and warranties, if the actual amount of property, plant and equipment as of Closing is less than the amount which the Sellers have represented to in Section 3.06(e), the Purchaser’s failure to comply with any Bulk Sales Laws;Loss shall be the amount of such deficiency.
(e) all Taxes (or To avoid the nonpayment thereof) double counting of Skyware Losses, the Purchaser agrees that it shall not be entitled to any indemnification for any Pre-Closing Tax Period and Losses resulting from any Pre-Closing Straddle Period, and (iibreach of Section 3.06(f) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary breach also results in a dollar for dollar reduction of the GES Development (as such term is defined in the WildBlue Agreement) under such agreement Company’s property, plant and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesequipment below S$224,496,000.
Appears in 1 contract
Samples: Stock Purchase Agreement (Chartered Semiconductor Manufacturing LTD)
Indemnification by the Sellers. (a) Subject to Section 12.4the limitations set forth herein, after the Closing, the Sellers agree to shall jointly and severally indemnify and defend the PurchaserBuyer against, and shall hold the Buyer, its Agents and its Affiliates, and their respective directorseach of the equityholders, officersheirs, shareholders, agents and employees, and their respective heirsexecutors, successors and assigns of any of the foregoing (eachcollectively, a the “Purchaser Indemnified PartyBuyer Indemnitees”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses actual loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (including reasonable attorneys’ fees) (collectively, “Losses”) suffered or incurred by or suffered by the Purchaser or its Affiliates imposed on such Buyer Indemnitee to the extent resulting from or arising out of any of the following:
(ai) any breach of or any inaccuracy in any representation or and warranty made by any Seller of the Sellers contained in Article III of this Agreement or the certificates delivered pursuant to Section 2.8(c)(ii)(C) (ii) any breach of the covenants or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice agreements of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) contained in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Datethis Agreement, and (iii) in without duplication, any Excluded Asset or Excluded Liability. In the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to event that the Sellers no later than the close may be obligated to indemnify a Buyer Indemnitee under both subsection (i) and subsection (iii) of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Daythis Section 6.2(a), the next Business Day), in each case with each such notice specifying Sellers’ obligations under subsection (in reasonably sufficient detailiii) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;be controlling.
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the The Sellers shall have no liability under this not be liable for (i) any Loss or Losses unless the claim for such Loss or Losses is brought within the Applicable Survival Period, (ii) with respect to breaches of representations contained in Section 12.2(b3.11 (Taxes) for any such breach taxable period (or failure occurring portion thereof) beginning on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
applicable Conversion Date and (ciii) any Retained Obligation;
(dLoss or Losses pursuant to Section 6.2(a)(i) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skywarewith respect to the Fundamental Representations to which the limitations in this Section 6.2(b) imposed on Skyware as a transferee other than the Aggregate Cap shall not apply) unless and until (A) the amount of Losses arising from any matter or successorseries of matters relating to the same underlying fact, by contract circumstance, action or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before exceeds $50,000 (“Covered Losses”) and (B) the Closing Date; or
(f) obligations, limited to reasonable, documented, out aggregate amount of pocket costs and expenses, all Covered Losses incurred by Purchaser after the Closing Date under Buyer Indemnitees exceeds $1,625,000 (the WildBlue Agreement“Deductible”), solely and then only to the extent that such Covered Losses exceed the Deductible; provided that (A) the cumulative indemnification obligations were necessary for of the GES Development Sellers pursuant to Section 6.2(a)(i) (as such term is defined other than with respect to the Fundamental Representations to which the limitations in this Section 6.2(b) other than the Aggregate Cap shall not apply) shall in no event exceed $32,500,000 in the WildBlue Agreement) under such agreement and solely to aggregate (the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement“10 % Cap”); provided, that and (iB) Purchaser shall cooperate in good faith with the cumulative indemnification obligations of the Sellers in order pursuant to minimize such out of pocket costs and expenses, Section 6.2(a)(i) and (ii) if such out of pocket costs and expenses shall in no event exceed $50,000 an amount equal to (1) the Closing Payment plus (2) the Contingent Payment actually received by the Sellers pursuant to Section 2.9(e) in the aggregateaggregate (the “Aggregate Cap”).
(c) Except as set forth in Section 2.9, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.Section 2.11
Appears in 1 contract
Samples: Asset Purchase Agreement (LPL Financial Holdings Inc.)
Indemnification by the Sellers. 11.1 REPAYMENT OBLIGATIONS
(a) Subject to the provisions of this Section 12.4, 11 from and after the Closing Date:
(i) all the Sellers agree to shall, severally and not jointly (conjointement et non-solidairement), in accordance with their pro rata portion as set out in Exhibit D, indemnify and severally indemnify hold harmless the Purchaser, its Affiliates, Buyer from and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses incurred borne by a Group Company and/or the Buyer, as applicable, which arise directly in connection with the following matters: any inaccuracy or suffered breach of any Business Warranty made by the Purchaser or its Affiliates to the extent arising out Management Sellers in Section 2 of any of the following:
(a) any breach of Exhibit B or any inaccuracy Tax Warranty (and in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provideda case, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under recourse against the Management Sellers); and
(ii) each Seller shall individually indemnify and hold harmless the Buyer from and against any and all Losses borne by a Group Company and/or the Buyer, as applicable which arise directly in connection with: (x) any inaccuracy or breach of any Fundamental Warranty made by such Seller in Section 1 of Exhibit B and (y) any breach, non-compliance or non-performance of any covenants or agreements made by such Seller contained in the Agreement.
(b) Any claim against any of the Sellers in connection with this Agreement shall be made in accordance with this Section 12.2(b11 and any payment due by a Seller thereunder (a Refund) for any such breach or failure occurring on or prior to shall have the Closing Date unless nature of a written notice reduction of the Purchaser Indemnified Party’s claim is sent part of the Final Consideration paid to the Sellers no later than the close of business on the date that is eighteen such Seller for his Transferred Securities (18) months after the Closing Date;réduction de prix), unless otherwise required by applicable Laws.
(c) The amount of the Refund paid to the Buyer by the Sellers under this Section 11 shall ultimately be borne: (x) in respect of Section 11.1(a)(i), by the Sellers in the proportions shown opposite their names in Exhibit D as may be updated from time to time after the date hereof by a notice sent by the Sellers to the Buyer (so long as such revised proportions total 100%) and (y) in respect of Section 11.1(a)(ii), by the relevant Seller only. The Buyer shall not incur any Retained Obligation;liability to the Sellers for such allocation or for any failure by the Sellers Representative or any other person to allocate the payment for the Refund between the Sellers in accordance with this paragraph.
(d) When a Refund is subject to any Seller’s failure corporate income Tax or if any non-refundable and non-creditable deductions or withholdings are required by Law to comply with any Bulk Sales Laws;
(e) all Taxes (be made from such Refund, its amount shall be increased by an additional amount as will, after such corporate income Tax has been paid or such deduction or withholding has been made, leave the Buyer and / or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes Group Companies with the same amount as they would have been entitled to receive in the absence of any Person such requirement to pay corporate income Tax or make a deduction or withholding. In the event where Buyer assigns its rights under this Agreement in accordance with Section 20(a) below, any increased payment that the assignee would be entitled to receive in accordance with this Section (other than Skywared) imposed on Skyware as a transferee or successor, by contract or pursuant shall not exceed the increased payment that the Buyer would have been entitled to any Law, which Taxes relate to an event or transaction occurring on or before receive in accordance herewith if the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, assignment had not to be unreasonably withheld, prior to incurring such costs and expensesoccurred.
Appears in 1 contract
Indemnification by the Sellers. Subject (a) From and after the Closing (but subject to Section 12.4the provisions of this Article 8), the Sellers agree to will jointly and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold harmless the Purchaser and its Affiliates harmless fromParties in respect of any Losses suffered, any and all Losses sustained or incurred or suffered by the Purchaser or its Affiliates Parties to the extent arising out of any of the followingor relating to:
(ai) any breach of or any inaccuracy in any representation or warranty made by of the Sellers set forth in Article 2;
(ii) any Seller breach of any covenant of the Sellers contained in this Agreement requiring performance at or after the Closing;
(iii) any breach Excluded Asset or Excluded Liability; or
(iv) any claims by existing or former direct or indirect equityholders of the Sellers with respect to the Transactions or claims by existing or former direct or indirect lenders, noteholders, creditors or lienholders of the Sellers (including those set forth in Section 4.6 of the Disclosure Schedule) with respect to the Transactions (including, without limitation, claims arising out of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at otherwise relating to the Closing; provided, that no Seller Restructuring Agreement).
(b) The Sellers shall have liability under this Section 12.2(a) not be liable to the Purchaser Parties for any breach claim or series of related claims for indemnification by the Purchaser Parties under Section 8.2(a)(i) where the Losses relating to such claim or inaccuracy series of related claims total less than $25,000, and the Purchaser Parties will not be entitled to indemnification under Section 8.2(a)(i) unless and until the aggregate amount of all Losses indemnifiable under Section 8.2(a)(i) exceeds on a cumulative basis an amount equal to $175,000 (the “Rep Indemnity Cap”), and then only to the extent of any such excess. Solely with respect to Losses under Section 8.2(a)(i) and, in any representation or warranty unless (i) each case, other than in the case of Fraud: (i) the aggregate liability in respect of all representations such Losses will in no event exceed the lesser of (A) the Rep Indemnity Cap and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of (B) the Purchaser Indemnified Party’s claim is given to Indemnity Escrow Funds then remaining in the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing DateIndemnity Escrow Account, (ii) all claims by the Purchaser Parties in respect of such Losses will be asserted solely and exclusively against the Indemnity Escrow Funds then remaining in the Indemnity Escrow Account pursuant to the terms of this Agreement and the Escrow Agreement, (iii) the Indemnity Escrow Funds then remaining in the Indemnity Escrow Account will be the Purchaser Parties’ sole and exclusive source of recovery for any amounts owing to the Purchaser Parties and (iv) for the avoidance of doubt, and without limiting the generality of the foregoing, no such claim by a Purchaser Party will be asserted against, and no Purchaser Party will be entitled to indemnification from, any of the Seller Parties or any other Person (other than the issuer of the R&W Insurance Policy) in respect of any such Losses.
(c) Other than in the case of Benefit Fraud, the aggregate liability in respect of all Losses under Section 8.2(a)(ii), Section 8.2(a)(iii) and Environmental WarrantiesSection 8.2(a)(iv) will in no event exceed the sum of (w) the Indemnity Escrow Funds then remaining in the Indemnity Escrow Account, a written notice (x) the then remaining amount of outstanding Revenue Retention Payments, (y) the then remaining amount of outstanding Growth Earnout Period Payments and (z) any True-Up Client Consent Adjustment Amount payable to Representative (for the benefit of Sellers) pursuant to Section 1.9(b), it being acknowledged and agreed that the foregoing sources of recovery shall be the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three Parties’ sole and exclusive remedy for all Losses (3) year anniversary of the Closing Date, and (iii) except in the case of Tax WarrantiesFraud) under Section 8.2(a)(ii), a written notice Section 8.2(a)(iii) and Section 8.2(a)(iv). Losses in respect of claims made under Section 8.2(a)(ii), Section 8.2(a)(iii) and Section 8.2(a)(iv) shall, except in the case of Fraud, be settled in the following order of priority: (w) first, against the Indemnity Escrow Funds then remaining in the Indemnity Escrow Account (x) second, as an offset against any True-Up Client Consent Adjustment Amount payable to Representative (for the benefit of Sellers) pursuant to Section 1.9(b), (y) third, as an offset against the then remaining amount of outstanding Revenue Retention Payments and (z) fourth, as an offset against the then remaining amount of outstanding Growth Earnout Period Payments. In the event of an offset to any Growth Earnout Period Payment in accordance with the previous sentence, the number of Earnout Shares payable in respect to the applicable Growth Earnout Period Payment shall be reduced by an amount equal to the quotient obtained by dividing (I) the amount of the applicable claim as finally determined pursuant to this Article 8, by (II) the Average VWAP of the Purchaser Indemnified Party’s claim is given to Common Stock for the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after 15-Trading Day period immediately preceding the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4, the Sellers agree to jointly and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses incurred or suffered by the Purchaser or its Affiliates to the extent arising out of any of the following:
(a) any breach Subject to the provisions of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for 8, following the Closing the Sellers shall protect, indemnify and hold harmless Buyer, each officer, director and agent of Buyer and each person who controls Buyer in respect of any breach losses, claims, damages, liabilities, deficiencies, delinquencies, defaults, assessments, fees, penalties or related costs or expenses, including, but not limited to, costs of investigation and defense, court costs and attorneys', and accountants' fees and disbursements, and any federal, state or inaccuracy local income or franchise taxes payable in any representation respect of the receipt of cash or warranty unless money in discharge of the foregoing, but reduced by (i) in the case any net amount paid on account of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure loss by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Periodinsurance policies, and (ii) any and all Taxes reserves on the Unaudited Financial Statements or the Unaudited Pavilion Financial Statements for liabilities or loss contingencies, whether or not of any Person a similar nature, (other than Skywarecollectively referred to herein as "Damages") imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, Buyer may become subject if such Damages arise out of pocket costs or are based upon (A) the breach of (i) any of the representations and expenses, incurred warranties contained in Section 3.1 hereof (whether such breach occurred as of the date of execution of this Agreement or as of the Bring Down Date) or (ii) the covenants or agreements made by Purchaser after the Closing Date under Sellers or the WildBlue Agreement, solely Company in this Agreement and any liabilities with respect to the extent that such obligations were necessary for the GES Development Excluded Assets or (as such term is defined in the WildBlue AgreementB) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement)Applicable 401K Claims; provided, however, that (i) Purchaser shall cooperate in good faith with Sellers in order the reduction for any reserves on the Unaudited Financial Statements or the Unaudited Pavilion Financial Statements pursuant to minimize such out of pocket costs and expenses, and clause (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers above shall only be obligated applicable with respect to indemnify Purchaser for such costs Damages which arise out of or are based upon the breach of any representations and expenses warranties contained in Section 3.1(d), (g) or (m) hereof.
(b) Subject to the extent that Purchaser obtains Andrew’s prior written consentprovisions of this Section 8, following the Closing each Seller, individually and not jointly, shall protect, indemnify and hold harmless the Buyer in respect of any Damages to which Buyer may become subject if such Damages arise out of or are based upon the breach of any of the representations, warranties, covenants or agreements made by such Seller on his or her own behalf in Section 3.2 of this Agreement (except for the representation and warranty made by such Seller in Section 3.2(g), damages for breach of which shall be unreasonably withheld, prior to incurring such costs and expensesborne proportionately by Sellers as if the Damages arise under Section 8.1(a) above).
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4The Sellers shall severally, the Sellers agree to jointly and severally not jointly, indemnify the Purchaser, Buyer and its Affiliates, and their respective officers, directors, officers, shareholders, agents and employees, and their respective heirsagents, representatives, successors and permitted assigns (eachcollectively, a “Purchaser Indemnified Party”the "Buyer Parties") againstand shall hold each of them harmless from and against and pay on behalf of or reimburse such Buyer Parties in respect of any loss (including, without limitation, diminution in value), liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of third party claims (including, without limitation, interest, penalties, reasonable attorneys' fees and agrees to hold the Purchaser and its Affiliates harmless fromexpenses, any court costs and all Losses incurred amounts paid in investigation, defense or suffered by the Purchaser or its Affiliates to the extent arising out settlement of any of the followingforegoing) (collectively, "Losses") which any such Buyer Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of:
(a) any the breach of or any inaccuracy in any representation or warranty made by any Seller of the Sellers or the Company contained in this Agreement or any breach of schedule or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warrantyexhibit hereto;
(b) any the breach of any covenant or failure by any Seller to perform any agreement of its covenants the Sellers or obligations set out the Company contained in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the ClosingAgreement; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;or
(c) the assertion or recovery against any Retained Obligation;
(d) of the Buyer Parties of any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (liability or obligation of the Company or the nonpayment thereof) of Skyware Sellers for Taxes for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee period or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring portion thereof ending on or before the Closing Date; or. Notwithstanding the foregoing, the obligation of the Sellers to provide indemnification pursuant to this Section 9.2 shall be subject to the following limitations:
(fi) obligations, The Sellers shall have no obligation to provide indemnification unless the Losses exceed $250,000 in the aggregate (in which event the Sellers shall provide indemnification for all such Losses);
(ii) The Sellers' total liability pursuant to this Section 9.2 for Losses shall be limited to reasonable$4,000,000 and each Seller's individual liability (in the aggregate not per individual claim) shall not exceed such Seller's pro rata share of such Losses based upon the percentage of the Purchase Price received by such Seller;
(iii) No Seller shall be liable for any Losses arising from the breach of any representation or warranty of any other Seller contained in Article 4; and
(iv) the amount of Losses for which indemnification is provided under this Section 9.2 shall be offset by (A) amounts that are reimbursable by insurance and (B) any Tax benefits realized from the Loss in the year such Loss is realized. After the Closing, documentedthe indemnity provisions contained in this Section 9.2 shall be the Buyer Parties' sole and exclusive remedy for breaches of this Agreement. Buyer agrees to use commercially reasonable efforts to make any claims for insurance, out Tax benefits and/or indemnification available from a third party(ies) with respect to Losses for which it will seek indemnification hereunder and to diligently pursue such claims in good faith. If any such insurance proceeds and/or other amounts are received by any Buyer Party of pocket costs any amount otherwise required to be paid to any Buyer Party pursuant to this Section 9.2, Buyer shall repay to the Sellers, promptly after receipt of such insurance proceeds and/or other amounts, the amount that the Sellers would not have had to pay pursuant to this Section 9.2 had such insurance proceeds and/or other amounts been received by the Buyer Parties prior to such Sellers' payment under this Section 9.2.
(v) Nothing contained herein shall prevent Buyer from bringing, and expensesthe time limitations set forth in Section 9.1 shall not apply to, incurred by Purchaser after a claim for fraud or willful misconduct against the Closing Date under Sellers.
(vi) To the WildBlue Agreementextent that the Sellers have any obligation or liability pursuant to this Section 9.2, such obligation or liability shall be discharged solely through the Escrow Fund (to the extent that such obligations were necessary for then available) in accordance with the GES Development (as such term is defined in the WildBlue Escrow Agreement and this Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sportsmans Guide Inc)
Indemnification by the Sellers. Subject to Section 12.4the provisions and limitations contained in this Article IX, the Sellers agree hereby agrees to jointly indemnify, defend and severally indemnify the hold harmless Purchaser, its AffiliatesAffiliates and the Company (collectively, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a the “Purchaser Sellers Indemnified PartyParties”) against, from and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses incurred Losses, Actions, Proceedings, claims and Liabilities (collectively “Purchaser Losses”) which the Sellers Indemnified Parties may at any time sustain or suffered incur, which are occasioned by, caused by the Purchaser or its Affiliates to the extent arising arise out of (i) any inaccuracy in or breach of any of the following:
(a) any breach representations and warranties of or any inaccuracy in any representation or warranty made by any Seller the Sellers in this Agreement or any breach of any covenants or any inaccuracy in any representation or warranty other agreements made by any Seller the Sellers in any Related this Agreement or any document delivered to the extent not waived in writing by such Person at Purchaser, (ii) all liabilities of the Closing; providedCompany, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) other than those incurred in the case ordinary course of all representations and warranties except for Benefit and Environmental Warrantiesbusiness, Tax Warranties and Title and Authorization Warranties, a written notice accrued as of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (iiiii) in any indebtedness and transaction-related fees and liabilities which are unpaid at the case of Benefit and Environmental WarrantiesClosing Date by the Company, a written notice of the Purchaser Indemnified Party’s claim is given subject to the Sellers no later than the close provision of business on the three (3) year anniversary of the Closing DateArticle 11.3 below, and (iiiiv) any undisclosed liabilities of the Company. The Sellers shall not have any right of contribution from the Company with respect to any Purchaser Losses claimed by the Sellers Indemnified Parties after the Closing. Sellers are liable for the indemnification obligations against Purchaser in proportion to the Shares they have sold to Purchaser under the present Agreement. Further, Individual Sellers are jointly liable for the indemnification obligations of the Corporate Seller in respect of Purchaser. Among the Individual Sellers their liability for the indemnification obligations of the Corporate Seller shall be in the case of Tax Warranties, a written notice proportion of the Purchaser Indemnified Party’s claim is given shares they transferred to the Sellers no later than the close Corporate Seller as of business on the 45th day after the expiration of the applicable statute of limitations 19 January 2006 as extended (or if such day is not a Business Day, the next Business Day), indicated in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.Exhibit A.
Appears in 1 contract
Samples: Stock Purchase Agreement (Albany Molecular Research Inc)
Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, the Sellers agree to jointly shall indemnify, defend and severally indemnify hold harmless the Purchaser, Buyer and its Affiliates, Affiliates and their respective officers, directors, officers, shareholdersemployees, agents and employeesrepresentatives (collectively, and their respective heirs, successors and assigns (each, a the “Purchaser Buyer Indemnified PartyParties”) against, and agrees reimburse any Buyer Indemnified Party for, all Losses that such Buyer Indemnified Party may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) the inaccuracy or breach of any representations or warranties made by the Sellers in this Agreement or in the certificates furnished by the Sellers pursuant to Sections 2.05(e) and 7.03(a);
(ii) any breach or failure by the Sellers to perform any of their covenants or obligations contained in this Agreement; or
(iii) any Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the contrary, (i) the Sellers shall not be required to indemnify, defend or hold the Purchaser and its Affiliates harmless fromany Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any and Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds a dollar amount equal to $367,762.58 (the “Deductible Amount”), after which the Sellers shall be obligated for all Losses incurred of the Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in excess of the Deductible Amount up to a dollar amount equal to $3,677,625.83; provided, however, that the limitations on indemnification set forth in this Section 9.02(b)(i) shall not apply to any indemnification claim brought as a result of the inaccuracy or suffered by the Purchaser or its Affiliates to the extent arising out breach of any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the ClosingFundamental Representations; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice cumulative indemnification obligation of the Purchaser Indemnified Party’s claim is given to Sellers under Section 9.02(a)(i) shall in no event exceed the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, Purchase Price; and (iii) in the case of Tax Warranties, a written notice indemnification obligation of the Purchaser Indemnified Party’s claim is given Sellers under Section 9.02(a)(i) with respect to a breach of Section 3.22 (Tax Matters) shall not be subject to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDeductible Amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Indemnification by the Sellers. Subject to Section 12.4(a) The Sellers shall defend, the Sellers agree to jointly indemnify and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser Buyer and its Affiliates present and future affiliates harmless from, from and against and in respect of any and all Losses actual losses, liabilities, damages, judgments, settlements and expenses, including reasonable attorneys' fees but excluding lost profits, consequential, punitive, special or indirect damages, incurred directly by Buyer and its affiliates (hereinafter "Buyer Losses")
(i) which arise out of the ownership, operation or suffered by the Purchaser or its Affiliates to the extent arising out use of any of the following:Excluded Assets or Excluded Liabilities or the satisfaction of any Permitted Liens, (ii) which are directly related to any Covered Product Recalls or (iii) subject to Section 3.16, any breach of the representations, warranties and covenants contained herein (reading such representations and warranties without regard to any materiality qualifiers (including "Material Adverse Effect") contained therein, but such representations and warranties shall not be read to exclude dollar thresholds contained therein). Buyer shall give the Sellers prompt written notice of any third party claim which may give rise to any indemnity obligation under this Article, together with the estimated amount of such claim for the representation, warranty and/or covenant that has been alleged to have been breached, and the Sellers shall have the right to assume the defense of any such claim through counsel of their own choosing, by so notifying Buyer within sixty (60) days of receipt of Buyer's written notice; provided, however, that the Sellers' counsel shall be reasonably satisfactory to Buyer. Failure to give prompt notice shall not affect the indemnification obligations hereunder in the absence of actual prejudice. If Buyer desires to participate in any such defense assumed by the Sellers, it may do so at its sole cost and expense. If the Sellers decline to assume any such defense, it shall be liable for all reasonable costs and expenses of defending such claim incurred by Buyer, including reasonable fees and disbursements of counsel. None of the Sellers, on one hand, or the Buyer, on the other hand, shall, without the prior written consent of the other, which shall not be unreasonably withheld, settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the other party or any subsidiary or affiliate thereof or if such settlement or compromise does not include an unconditional release of the other party for any liability arising out of such claim or demand or any related claim or demand.
(b) Other than with respect to losses described in Section 8.1(a)(ii), the Sellers shall not have any obligation under clause (iii) of Section 8.1
(a) to indemnify Buyer and its affiliates from and against any Buyer Losses caused by the breach of or any inaccuracy in any representation or warranty made by any Seller or covenant of the Sellers (i) unless the Buyer Losses suffered in this Agreement respect of each single or any related occurrence of a breach of or any inaccuracy in any such representation or warranty made by any Seller in any Related Agreement for which Buyer seeks indemnity shall be equal to or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later greater than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, $25,000 and (ii) any until Buyer and all Taxes its affiliates have suffered Buyer Losses for which Buyer is entitled to be indemnified for the breach of any Person (other than Skyware) imposed on Skyware as a transferee or successorsuch representation and warranty, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out in excess of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined $600,000 in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance aggregate (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, after which point the Sellers shall will only be obligated to indemnify Purchaser Buyer and its affiliates for such costs the amount of Buyer Losses in excess of the $600,000 deductible). Notwithstanding the foregoing, the liability of the Sellers to indemnify Buyer and expenses to its affiliates under clauses (ii) and (iii) of Section 8.1(a) shall not exceed 33% of the extent that Purchaser obtains Andrew’s prior written consentPurchase Price.
(c) Following the Closing, not to the indemnity provided in this Section 8.1 shall be unreasonably withheld, prior to incurring such costs the sole and expensesexclusive remedy of Buyer and its affiliates against the Sellers at law or equity for any breach of a representation or warranty (except in the case of fraud).
Appears in 1 contract
Samples: Asset Purchase Agreement (American Italian Pasta Co)
Indemnification by the Sellers. Subject (a) Each Seller agrees, subject to Section 12.4the other terms and conditions of this Agreement and without gross-up for Taxes, the Sellers agree on a several not joint basis, up to jointly and severally its Pro Rata Share of such indemnified amounts, to indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates (including, without limitation, the Companies) (as used in this Section 9.03, each a "Purchaser Indemnified Party") against and hold each Purchaser Indemnified Party harmless from, any and from all Losses incurred or suffered by the Purchaser or its Affiliates to the extent arising out of any of (i) the following:
(a) any breach of or any inaccuracy in any representation or warranty of such Seller contained in Article III (other than Section 3.15, it being understood that the sole remedy for breach thereof shall be pursuant to Article VII) and (ii) the breach by such Seller of any covenant or agreement of such Seller contained herein (other than Article VII, it being understood that the sole remedy for breach thereof shall be pursuant to Article VII). Anything in Section 9.01 to the contrary notwithstanding, no claim may be asserted nor any action commenced against any Seller for breach of any representation, warranty, covenant or agreement contained herein, unless written notice of such claim or action is received by such Seller describing in detail the facts and circumstances with respect to the subject matter of such claim or action on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in Section 9.01.
(b) The indemnification obligations of the Sellers pursuant to Section 9.03(a)(i) shall not be effective until the aggregate dollar amount of all Losses which would otherwise be indemnifiable pursuant to Section 9.03(a)(i) exceeds $3,000,000 (the "Sellers' Threshold Amount"), and then only to the extent such aggregate amount exceeds the Sellers' Threshold Amount. In addition, no claim may be made against any Seller for indemnification pursuant to Section 9.03(a)(i) with respect to any individual item of Loss, unless such item exceeds $250,000, nor shall any such item which does not exceed $250,000 be applied to or considered part of the Sellers' Threshold Amount. The indemnification obligations of each Seller pursuant to Section 9.03(a)(i) shall be effective only until the dollar amount paid by all Sellers in respect of all Losses indemnified against under Section 9.03(a)(i) aggregates to an amount equal to $15,000,000. For the purposes of this Section 9.03(b), in computing such individual or aggregate amounts of claims, the amount of each claim shall be deemed to be an amount (i) net of any Post-Closing Date Tax Benefit, (ii) net of any insurance proceeds and any indemnity, contribution or other similar payment recovered by any Purchaser Indemnified Party from any third party with respect thereto and (iii) net of any adjustments to the Purchase Price pursuant to Section 2.04 with respect to the subject matter in dispute. The limitations imposed by this Section 9.03(b) shall not be applicable to any loss relating to Taxes, which shall be governed exclusively by Article VII.
(c) Payments by any Seller pursuant to Section 9.03(a) shall be limited to such Seller's Pro Rata Share of the amount of any Losses that remains after deducting therefrom (i) any Post-Closing Date Tax Benefit, (ii) any insurance proceeds and any indemnity, contribution or other similar payment recovered by any Purchaser Indemnified Party from any third party with respect thereto and (iii) any adjustments to the Purchase Price pursuant to Section 2.04 with respect to the subject matter in dispute. If a payment is made by any Seller in accordance with this Agreement Section 9.03, and if in a subsequent taxable year a Post- Closing Date Tax Benefit is realized by any Purchaser Indemnified Party or any breach Affiliate of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered Purchaser Indemnified Party (that was not previously taken into account to reduce an amount otherwise payable by such Person at the Closing; providedSeller under Section 9.03), that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given shall promptly pay to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; providedtime of realization, that the Sellers shall have no liability under this Section 12.2(b) for any amount of such breach or failure occurring on or prior to the Post-Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely Benefit to the extent that such obligations were necessary for the GES Development (as such term is defined amount would have resulted in a reduction in the WildBlue Agreement) obligations of such Seller under such agreement and solely to this Section 9.03 if the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined Post-Closing Date Tax Benefit had been obtained in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize year of such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only Seller's payment. A Post-Closing Date Tax Benefit will be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not considered to be unreasonably withheld, prior to incurring such costs and expensesrealized for purposes of this Section 9.03 at the time that it is reflected on a Tax return of any Purchaser Indemnified Party or any Affiliate of any Purchaser Indemnified Party.
Appears in 1 contract
Samples: Purchase Agreement (Carematrix Corp)
Indemnification by the Sellers. Subject to Section 12.4, the (a) The Sellers agree to shall jointly and severally defend, indemnify the Purchaserand hold Buyer and its affiliates (which, its Affiliatesfor purposes of this Section 8, and their respective shall include Buyer's officers, directors, officersdirect and indirect owners, shareholdersagents, agents and employees, and their respective heirsrepresentatives, successors and assigns (each, a “Purchaser Indemnified Party”permitted assigns) against, harmless from and agrees to hold the Purchaser against and its Affiliates harmless from, in respect of any and all Losses losses, liabilities, damages, judgments, settlements and expenses, including reasonable attorneys' fees, incurred directly by Buyer and its affiliates (hereinafter "BUYER LOSSES") which arise out of, relate to, or suffered by the Purchaser or its Affiliates to the extent arising out result from (1) any breach of any of the following:
representations and warranties contained in Section 3 hereof or any certificate delivered pursuant hereto, (a2) any breach of or any inaccuracy in any representation or warranty of the covenants and agreements made by Sellers or (prior to Closing) UIC in this Agreement, including, without limitation, Article 2, and (3) any Seller Income Tax of UIC or its subsidiaries for any Tax period (or portion thereof) ending on or prior to the Closing Date except to the extent of any Income Taxes reflected on the Closing Balance Sheet are included in the calculation of Closing Working Capital. Buyer shall give the Sellers prompt written notice of any third party claim which may give rise to any indemnity obligation under this Section, together with the estimated amount of such claim, and if the aggregate monetary exposure of the Sellers under such claim exceeds the aggregate monetary exposure of Buyer under such claim (with the parties' aggregate monetary exposure determined by the Sellers and Buyer in good faith taking into account all applicable insurance coverage and all amounts paid with respect to all previously resolved indemnification claims under this Agreement or any breach reasonably expected to be paid with respect to all pending unresolved indemnification claims under this Agreement), then the Sellers shall have the right to assume the defense of or any inaccuracy in any representation or warranty made such claim through counsel of their own choosing, by any Seller in any Related Agreement or any document delivered by such Person at the Closingso notifying Buyer within sixty (60) days of receipt of Buyer's written notice; provided, however, that no Seller the Sellers' counsel shall be reasonably satisfactory to Buyer, provided further, that as a condition precedent to the Sellers' right to assume control of such defense, Sellers must first admit in writing that such claims would be covered by the indemnification provisions in this Agreement, and provided further, that if the Sellers and Buyer cannot agree on whose aggregate monetary exposure is greater within twenty days of the notice of the third party claim from Buyer to the Sellers, then they shall refer the matter to a nationally recognized law firm mutually selected by the Sellers and Buyer (the "FIRM"), which shall be directed to determine within ten days of such referral whether the Sellers, on the one hand, or Buyer, on the other hand, have the greater aggregate monetary exposure for such third party claim. The parties shall make available to the Firm all items reasonably requested by the Firm in order for the Firm to assess their aggregate monetary exposure, and the Firm's determination shall be conclusive and binding upon the Sellers and Buyer. The fees and disbursements of the Firm shall be shared equally by the Sellers, on the one hand, and Buyer, on the other hand, and the Firm shall be held harmless by and shall have no liability under this to the Sellers or Buyer in connection with the foregoing. Failure to give prompt notice shall not affect the indemnification obligations hereunder unless there is actual prejudice. If Buyer desires to participate in any such defense assumed by the Sellers, it may do so at its sole cost and expense. If the Sellers decline (or in accordance with the above are not permitted) to assume any such defense, they shall be liable for and pay as incurred all reasonable costs and expenses of defending such claim by Buyer, including reasonable fees and disbursements of counsel. Neither Buyer nor the Sellers shall, without the prior written consent of the other party or parties, which shall not be unreasonably withheld, settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the other party or parties or any subsidiary or affiliate thereof or if such settlement or compromise does not include an unconditional release of the other party or parties for any liability arising out of such claim or demand or any related claim or demand, nor shall the defending party enter into any other settlement or compromise without the prior written consent of the defended party, which consent shall not be unreasonably withheld; PROVIDED that in any case if the defended party does not so consent, it shall be responsible for all Buyer Losses arising out of or related to the claim that was the subject matter of such settlement or compromise which are in excess of the Buyer Losses that would have been incurred if consent for such settlement had been granted, regardless of any other limitations on such party's indemnification obligations hereunder.
(b) The foregoing obligation to indemnify Buyer and its affiliates set forth in Section 12.2(a8.1(a) shall be subject to each of the following limitations:
(i) The Sellers' indemnification obligation for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, described in (A) Section 3.11 (Tax Warranties and Title and Authorization Warranties, a written notice Matters) of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after this Agreement shall survive until 30 days following the expiration of the applicable statute of limitations as extended limitations, (B) Section 3.15 (Environmental Matters) of this Agreement shall survive until December 31, 2002, (C) Sections 3.2 (Authority) and 3.3 (UIC Common Stock) of this Agreement shall survive forever, and (D) all other sections of Article 3 and any certificate delivered pursuant hereto shall survive until the earlier of (x) ten days following the receipt of audited financial statements of UIC for the period ending December 31, 1999 or if (y) April 15, 2000, and thereafter all such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature representations and warranties of the Sellers under this Agreement and any certificate delivered pursuant hereto shall be extinguished. No claim andfor the recovery of such Buyer Losses may be asserted by Buyer after such applicable survival periods; PROVIDED, so far as practicable, the amount claimed; provided, furtherHOWEVER, that no Seller claims first asserted in writing with reasonable specificity within such period shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warrantynot thereafter be barred;
(bii) No reimbursement for Buyer Losses asserted against the Sellers under Section 8.1(a)(1) above (except to the extent related to breaches of representations and warranties contained in Sections 3.2 (Authority), 3.3 (UIC Common Stock), 3.9(b) (Brest Case), 3.11 (Tax Matters), 3.14 (Finders; Brokers) or 3.21 (Indebtedness), with respect to each of which there will be no Threshold (as defined below)) shall be required unless and until the cumulative aggregate amount of such Buyer Losses equals or exceeds Ten Million United States Dollars (US $10,000,000) (the "THRESHOLD") and then only to the extent that the cumulative aggregate amount of such Buyer Losses, as finally determined, exceeds said Threshold; provided that in calculating such Threshold any breach of or failure by any Seller to perform any of its covenants or obligations set out Buyer Losses which individually total less than Fifty Thousand United States Dollars (US $50,000) each ("DE MINIMIS BUYER LOSSES") shall be excluded in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out their entirety and the Sellers in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers event shall have no liability under this Section 12.2(b) hereunder to Buyer and its affiliates for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDE MINIMIS Buyer Losses.
Appears in 1 contract
Samples: Recapitalization Agreement (United Industries Corp)
Indemnification by the Sellers. Subject (a) After the Closing Date and subject to Section 12.4the limitations set forth herein, (i) the Sellers shall indemnify and hold harmless Buyer, the Sellers agree to jointly Company and severally indemnify the Purchaser, its Affiliates, Company Subsidiary from and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses incurred by Buyer, the Company or suffered by the Purchaser Company Subsidiary in connection with or its Affiliates to the extent arising out of any of the following:
from: (ax) any breach of any warranty or any the inaccuracy in of any representation of the Company or warranty made by any Seller the Sellers contained in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing DateAgreement, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(by) any breach of by the Company or the Sellers of, or failure by any Seller the Company or the Sellers to perform perform, any of its covenants or obligations set out contained in this Agreement (determined in all cases under clauses (x) and (y) as if the limitations by the terms “material” or “materially”, or any breach of derivation thereof, were not included therein or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; providedSchedules related thereto), that the Sellers shall have no liability under this Section 12.2(band (z) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is actions taken within eighteen (18) months after of the Closing Date to ensure that the Company’s and the Company Subsidiary’s operations are conducted in substantial compliance with Firearms Regulations; provided, however, that:
(i) The Sellers shall be required to indemnify and hold harmless under clauses (x) and (z) of this Section 10.1(a), with respect to Losses only to the extent that: (A) the amount of the Losses related to each individual claim or series of related claims arising out of the same facts, events or circumstances exceeds Twenty-Five Thousand Dollars ($25,000) which shall not be applied against the Threshold Amount; and (b) the aggregate amount of such Losses exceed Five Hundred and Twenty Thousand Dollars ($520,000) (the “Threshold Amount”), in which event Buyer shall be entitled to claim indemnity for the full extent of such Losses related to individual claims or series of related claims arising out of the same facts, events or circumstances exceeding $25,000;
(ii) (A) The aggregate amount required to be paid by the Sellers under clause (z) of this Section 10.1(a) shall not exceed an amount equal to Two Hundred Thousand Dollars ($200,000) and (B) the aggregate amount required to be paid by the Sellers collectively under clauses (x) and (z) of this Section 10.1(a) shall not exceed an amount equal to Five Million Two Hundred Thousand Dollars ($5,200,000); provided, however, that the limitations set forth in this clause (ii) and in clause (i) above shall not apply to a claim pursuant to Section 10.1 relating to (A) any breach of any warranty or the inaccuracy of any representation set forth in Section 3.1 (Sellers Authority and Enforceability), Section 4.2 (Authority and Enforceability), Section 4.4 (Capitalization) or Section 4.8 (Taxes) or (B) any breach of any warranty or the inaccuracy of any representation that constitutes fraud; and
(iii) Each Seller shall be severally liable in accordance with their pro rata share of the Escrow Amount, until the release of the escrow funds, if any remaining, in accordance with the terms and provisions of the Escrow Agreement. After such release of any escrow funds, each Seller shall be severally liable for all Losses, as determined based on the percentage of the total number of Shares held by such Seller as set forth on Schedule 1.1, for all Losses subject to the limitations set forth in clauses (i) and (ii) above.
(b) After the Closing Date;, the Sellers will indemnify and hold harmless Buyer, the Company and the Company Subsidiary, from and against any Expense Amount or Management Amount not set forth in the Expense Statement.
(c) For purposes of Section 10.1(a)(z), Losses shall include any Retained Obligation;
expenses incurred or paid by the Company (dwhich shall not include any allocation for time spent by the Company’s or the Company Subsidiary’s employees) any Seller’s failure to comply in connection with any Bulk Sales Laws;
(e) all Taxes (or actions taken since July 1, 2007 to ensure that the nonpayment thereof) of Skyware for any Pre-Closing Tax Period Company’s and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined Company Subsidiary’s operations are conducted in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith substantial compliance with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesFirearms Regulations.
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Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, the Sellers agree to jointly shall indemnify, defend and severally indemnify hold harmless the Purchaser, Buyer and its Affiliates, Affiliates and their respective officers, directors, officers, shareholdersemployees, agents and employeesrepresentatives (collectively, and their respective heirs, successors and assigns (each, a the “Purchaser Buyer Indemnified PartyParties”) against, and agrees to hold the Purchaser and its Affiliates harmless fromreimburse any Buyer Indemnified Party for, any and all Losses incurred that such Buyer Indemnified Party may at any time suffer or suffered by the Purchaser incur, or its Affiliates to the extent arising out become subject to, as a result of any of the followingor in connection with:
(ai) any the inaccuracy or breach of any representations or any inaccuracy in any representation or warranty warranties made by any Seller the Sellers in this Agreement or in the certificates furnished by the Sellers pursuant to Sections 2.05(d) and 7.03(a);
(ii) any breach or failure by the Sellers to perform any of their covenants or obligations contained in this Agreement; or
(iii) any inaccuracy Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any representation Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the contrary, (i) the Sellers shall not be required to indemnify, defend or warranty made by hold harmless any Seller Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds a dollar amount equal to $155,622.34 (the “Deductible Amount”), after which the Sellers shall be obligated for all Losses of the Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in any Related Agreement or any document delivered by such Person at excess of the ClosingDeductible Amount up to a dollar amount equal to $1,556,223.40; provided, however, that no Seller shall have liability under the limitations on indemnification set forth in this Section 12.2(a9.02(b)(i) for shall not apply to any indemnification claim brought as a result of the inaccuracy or breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, Fundamental Representation; (ii) in the case of Benefit and Environmental Warranties, a written notice cumulative indemnification obligation of the Purchaser Indemnified Party’s claim is given to Sellers under Section 9.02(a)(i) shall in no event exceed the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, Purchase Price; and (iii) in the case of Tax Warranties, a written notice indemnification obligation of the Purchaser Indemnified Party’s claim is given Sellers under Section 9.02(a)(i) with respect to a breach of Section 3.22 (Tax Matters) shall not be subject to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDeductible Amount.
Appears in 1 contract
Indemnification by the Sellers. Subject If the Closing occurs, and subject to the limitations expressly set forth in Section 12.48.4 and Section 8.5, the Sellers agree to will jointly and severally indemnify and hold harmless the Purchaser, Purchaser and its Affiliates, and their respective directors, officers, shareholders, agents and employees, agents, representatives, stockholders and their respective heirsAffiliates (collectively, successors and assigns (each, a “the "Purchaser Indemnified Party”Parties") against, from and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses (other than Losses with respect to Taxes, for which the provisions of Section 9.1(a) will govern) incurred or suffered by the Purchaser Indemnified Parties arising or its Affiliates to resulting from (a) the extent arising out failure of any of the following:
(a) any breach of representations or any inaccuracy in any representation or warranty warranties made by any Seller the Sellers in this Agreement or any breach of or any inaccuracy in any representation Ancillary Agreements or warranty made by any Seller other agreements delivered in any Related Agreement connection herewith or any document delivered by such Person therewith to be true and correct in all respects at and as of the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach date hereof and at and as of or inaccuracy in any representation or warranty unless the Closing Date (i) in other than breaches of the case of all representations and warranties except set forth in Section 3.27, for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice which the provisions of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18Section 8.1(d) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Daywill govern), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any the breach of any covenant or failure by any Seller to perform any other agreement on the part of its covenants or obligations set out in the Sellers under this Agreement or any breach of Ancillary Agreements or failure by any Seller to perform its covenants other agreements delivered in connection herewith or therewith; (c) the indemnification obligations set out forth in Section 10.7 of this Agreement; (d) the Acquired Companies' failure to comply, at any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or time prior to the Closing Date unless a written notice Closing, with the testing and reporting requirements of the Purchaser Indemnified Party’s claim is sent Defense Logistics Agency and Defense Supply Center Columbus, whether applicable directly or indirectly, including, without limitation, the requirements necessary for any Acquired Company to the Sellers no later than the close of business be listed on the date DoD List for the Mil Spec Products and the requirements applicable to those other Products of the Acquired Companies that is eighteen are or have been on the DoD List (18) months after in which case, for the Closing Date;
(c) avoidance of doubt, Losses will include, without limitation, all costs associated with any Retained Obligation;
(d) any Seller’s and all criminal fines, applicable penalties and product recall expenses arising out of such failure to comply with any Bulk Sales Laws;
comply); and (e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary not already reduced from the Purchase Price pursuant to the terms of Article 2, any fees, commissions, or like payments by any Person having acted or claiming to have acted, directly or indirectly, as a broker, finder or financial advisor for the GES Development (as such term is defined Acquired Companies in connection with the WildBlue transactions contemplated by this Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 1 contract
Indemnification by the Sellers. Subject to The Sellers shall indemnify and hold harmless Purchaser and each person, if any, who controls Purchaser within the meaning of Section 12.4, 15 of the Sellers agree to jointly Securities Act or Section 20 of the Exchange Act and severally indemnify the Purchaser, its Affiliates, and each of their respective directors, officersofficer, shareholders, agents and employees, trustees and their respective heirsagents (collectively, successors and assigns (each, a “the "Purchaser Indemnified Party”Parties") againstagainst any losses, and agrees claims, damages or liabilities to hold the Purchaser and its Affiliates harmless from, any and all Losses incurred or suffered by the Purchaser or its Affiliates to the extent arising out of any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of which the Purchaser Indemnified Party’s claim is given Parties may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any preliminary, final or summary Prospectus contained therein or furnished by Purchaser to the Sellers no later than Sellers, or any amendment or supplement thereto, or arise out of or are based upon the close of business on omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is statements therein not a Business Day, the next Business Day)misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to Purchaser by the Sellers expressly for use therein, and the Sellers shall, and hereby agree to, reimburse the Purchaser Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the indemnity obligation of each such notice specifying (in reasonably sufficient detail) Seller hereunder shall be limited to and shall not exceed the matter giving rise proceeds actually received by such Seller upon a sale of Registrable Securities pursuant to the claim, the nature of the claim and, so far as practicable, the amount claimeda registration statement hereunder; and provided, further, that no Seller shall have any liability under the indemnity agreement contained in this Section 12.2(a7(b) for shall not apply to amounts paid in settlement of any breach such losses, claims, damages or liabilities if such settlement is effected without the consent of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers (which consent shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses).
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, the Sellers agree to jointly shall indemnify, defend and severally indemnify hold harmless the Purchaser, Buyer and its Affiliates, Affiliates and their respective officers, directors, officers, shareholdersemployees, agents and employeesrepresentatives (collectively, and their respective heirs, successors and assigns (each, a the “Purchaser Buyer Indemnified PartyParties”) against, and agrees reimburse any Buyer Indemnified Party for, all Losses that such Buyer Indemnified Party may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) the inaccuracy or breach of any representations or warranties made by the Sellers in this Agreement or in the certificates furnished by the Sellers pursuant to Sections 2.05(d) and 7.03(a);
(ii) any breach or failure by the Sellers to perform any of their covenants or obligations contained in this Agreement; or
(iii) any Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the contrary, (i) the Sellers shall not be required to indemnify, defend or hold the Purchaser and its Affiliates harmless fromany Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any and Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds a dollar amount equal to $365,591.24 (the “Deductible Amount”), after which the Sellers shall be obligated for all Losses incurred of the Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in excess of the Deductible Amount up to a dollar amount equal to $3,655,912.39; provided, however, that the limitations on indemnification set forth in this Section 9.02(b)(i) shall not apply to any indemnification claim brought as a result of the inaccuracy or suffered by the Purchaser or its Affiliates to the extent arising out breach of any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the ClosingFundamental Representations; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice cumulative indemnification obligation of the Purchaser Indemnified Party’s claim is given to Sellers under Section 9.02(a)(i) shall in no event exceed the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, Purchase Price; and (iii) in the case of Tax Warranties, a written notice indemnification obligation of the Purchaser Indemnified Party’s claim is given Sellers under Section 9.02(a)(i) with respect to a breach of Section 3.22 (Tax Matters) shall not be subject to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDeductible Amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Indemnification by the Sellers. Subject Without prejudice to Section 12.4any other rights and remedies available by law to the Purchasers and to the Companies, the Sellers agree undertake to jointly hold harmless against all claims and severally indemnify the PurchaserPurchasers or the Companies for any losses, its Affiliatesdamages or expenses (including interest payments) or decrease of the assets of the Companies, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses incurred or suffered sustained by the Purchaser Purchasers or its Affiliates to the extent arising out Companies as a result of the inaccuracy in or breach of any of the following:
(a) Representations and Warranties of the Sellers, and/or any breach of any undertaking or any inaccuracy in any representation or warranty made by any Seller obligation of the Sellers contained in this Agreement agreement. The Purchasers shall take all reasonable steps to avoid or mitigate any breach such losses, damages or expenses (including interest payments) or decrease of the assets of the Companies. The Purchasers undertake to inform the Sellers of any such losses, damages or any inaccuracy expenses (including interest payments) or decrease of the assets of the Companies within 10 days after the Purchasers' discovery hereof, in any representation order to enable the Sellers to remedy such losses, damages or warranty made by any Seller in any Related Agreement expenses (including interest payments) or any document delivered by such Person at decrease of the Closing; assets of the Companies, provided, however, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy delay in any representation or warranty unless (i) giving such information will not result in the case waiver by the Purchasers of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach rights except to the extent the rights of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered the Sellers are actually prejudiced by such Seller at failure or delay. No claim or demand which would result in the Closing; providedSellers being liable hereunder may be settled without the consent of the Sellers, that which consent shall not be unreasonably withheld. For the purposes of this article, any losses, damages or expenses incurred by the Companies and Participations as a result of any such violation or inaccuracy of the Warranties and Representations of the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior be regarded as being incurred by the Purchasers in proportion to the Closing Date unless a written notice actual number of shares in such company directly or indirectly held by the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesPurchasers.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, the Sellers agree to jointly shall indemnify, defend and severally indemnify hold harmless the Purchaser, Buyer and its Affiliates, Affiliates and their respective officers, directors, officers, shareholdersemployees, agents and employeesrepresentatives (collectively, and their respective heirs, successors and assigns (each, a the “Purchaser Buyer Indemnified PartyParties”) against, and agrees to hold the Purchaser and its Affiliates harmless fromreimburse any Buyer Indemnified Party for, any and all Losses incurred that such Buyer Indemnified Party may at any time suffer or suffered by the Purchaser incur, or its Affiliates to the extent arising out become subject to, as a result of any of the followingor in connection with:
(ai) any the inaccuracy or breach of any representations or any inaccuracy in any representation or warranty warranties made by any Seller the Sellers in this Agreement or in the certificates furnished by the Sellers pursuant to Sections 2.05(d) and 7.03(a);
(ii) any breach or failure by the Sellers to perform any of their covenants or obligations contained in this Agreement; or
(iii) any inaccuracy Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any representation Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the contrary, (i) the Sellers shall not be required to indemnify, defend or warranty made by hold harmless any Seller Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds a dollar amount equal to $75,914.11 (the “Deductible Amount”), after which the Sellers shall be obligated for all Losses of the Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in any Related Agreement or any document delivered by such Person at excess of the ClosingDeductible Amount up to a dollar amount equal to $759,141.13; provided, however, that no Seller shall have liability under the limitations on indemnification set forth in this Section 12.2(a9.02(b)(i) for shall not apply to any indemnification claim brought as a result of the inaccuracy or breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, Fundamental Representation; (ii) in the case of Benefit and Environmental Warranties, a written notice cumulative indemnification obligation of the Purchaser Indemnified Party’s claim is given to Sellers under Section 9.02(a)(i) shall in no event exceed the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, Purchase Price; and (iii) in the case of Tax Warranties, a written notice indemnification obligation of the Purchaser Indemnified Party’s claim is given Sellers under Section 9.02(a)(i) with respect to a breach of Section 3.22 (Tax Matters) shall not be subject to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDeductible Amount.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4The Sellers shall, the Sellers agree to jointly and severally severally, indemnify and hold harmless the Purchaser, its Affiliates, Buyer from and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses claims, losses, damages, liabilities and expenses (including, without limitation, settlement costs and any legal, accounting and other expenses for investigating or defending any actions or threatened actions), net of income tax benefits and insurance proceeds, if any ("Damages"), incurred or suffered by the Purchaser or its Affiliates to the extent arising out of any Buyer, in connection with each and all of the following:
: (a) any Any breach of or any inaccuracy in any representation or warranty made by Sellers in this Agreement (unless waived in writing by the Buyer prior to the Closing); (b) The breach of any Seller covenant, agreement or obligation of the Sellers contained in this Agreement or any breach of other certificate or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered pursuant to this Agreement (unless waived in writing by such Person at the Buyer prior to the Closing); provided, (c) Claims arising out of the operation of the Sellers' Business before Closing; (d) Costs and damages arising out of that no Seller shall have liability under this Section 12.2(athose pending tax assessments/audits described on Schedule 5.1.6 and that litigation described on Schedule 5.1.7; (e) for any breach The failure of or inaccuracy the Sellers to obtain the protection afforded by compliance with the notification requirements of the Bulk Sales Laws in any representation or warranty unless (i) force in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given jurisdictions in which such laws may be applicable to the Sellers no later than or the close Transaction contemplated by this Agreement. The Sellers covenant and agree to pay and discharge, in due course, all claims of business on creditors which may be asserted against the date that is eighteen (18) months after Buyer by reason of such noncompliance, to the Closing Dateextent, (ii) and in the case of Benefit and Environmental Warrantiesrespective dollar amounts, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, furtherany, that no Seller shall have any liability such liabilities or obligations are not assumed by the Buyer under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the ClosingAgreement; provided, that and the Sellers shall have no liability under this Section 12.2(b) for indemnify the Buyer against and hold it harmless with respect to any such breach or failure occurring on or prior to losses suffered by the Closing Date unless a written notice Buyer by reason of the Purchaser Indemnified Party’s claim is sent to failure of the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (pay or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Datedischarge such claims; or
(f) obligationsCosts (including reasonable attorneys' fees), limited to reasonabledamages, documentedliabilities, fines and penalties arising out of pocket costs any noncompliance by the Sellers with the terms and expensesconditions of Licenses issued by the FCC, including such noncompliance as is set forth on Schedule 5.1.4(a); and (g) any Excluded Liability. Notwithstanding the foregoing, the Buyer shall not be entitled to indemnification hereunder until such time as the amount of Damages incurred by Purchaser after the Closing Date under Buyer exceeds $50,000, at which time the WildBlue AgreementBuyer shall be entitled to indemnification for all Damages in excess of $50,000, solely provided however that the foregoing shall not apply to determination of, or adjustments to, the Purchase Price set forth in Article 4 or to the extent that such Sellers' indemnification obligations were necessary for the GES Development (as such term is defined set forth in the WildBlue AgreementSection 11.1(d) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4Each Seller shall, jointly and severally, indemnify, defend and hold harmless Providence, its officers, directors, employees, agents, representatives, subsidiaries, affiliates (including, the Sellers agree to jointly WCG Companies) and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, Providence’s successors and assigns (each, each a “Purchaser Providence Indemnified Party” or, collectively, the “Providence Indemnified Parties”) from and against, and agrees to hold the Purchaser and its Affiliates harmless fromwithout duplication, any and all Losses incurred actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs and expenses, including reasonable attorneys’ or suffered by lawyers’ fees and court costs (each a “Loss”, or collectively the Purchaser or its Affiliates to the extent “Losses”), arising out of or caused by, directly or indirectly, any of the following; provided, the determination of Losses shall be made without regard to any materiality qualification:
10.1.1 Any misrepresentation, breach or failure of any warranty or representation made by the Sellers (aor in the case of a representation and warranty that is expressed to be made severally by a Seller, in the case of that Seller only in proportion to such Seller’s portion of the Closing Date Payment) or the WCG Companies in or pursuant to this Agreement (without regard to any breach supplement to the Schedules), it being the agreed intention of or any inaccuracy the parties that for purposes of this Section, in determining the accuracy of any representation or warranty made by any Seller of the Sellers in this Agreement, such representations and/or warranties shall be deemed to have been made without limitation based upon any standard of materiality including each reference to Material Adverse Effect, notwithstanding any language contained in any such Section that would otherwise have the effect of so limiting any representation or warranty set forth therein. It is understood by the parties that the representations and warranties made by the Sellers in this Agreement or survive until the Expiration Date, provided that Sellers shall have no liability to a Providence Indemnified Party in respect of any breach of or any inaccuracy in any representation or warranty made by any Seller Sellers where the amount of the Loss in any Related Agreement or any document delivered by respect of such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless is (i) in the case of all representations provided for and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given actually paid pursuant to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing DateFinal Working Capital, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of deducted from the Closing DateCash Payment pursuant to Section 2.2.2, and or (iii) in the case of Tax Warranties, a written notice is an Account Receivable for which indemnification is provided under Section 10.1.10.
10.1.2 Any failure or refusal by any of the Purchaser Indemnified Party’s claim is given Sellers to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (satisfy or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any covenant, term or condition of its covenants or obligations set out in this Agreement or any breach of agreement to be executed and delivered pursuant to this Agreement that is required to be satisfied or failure performed by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior all of them.
10.1.3 Except to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business extent reflected on the date that is eighteen Actual Working Capital Statement, (18) months after the Closing Date;
(ci) any Retained Obligation;
(d) Taxes of any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware WCG Company for any Pre-Closing Tax Period and any Pre-Closing Straddle PeriodPeriods, and (ii) any and all for the unpaid Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant otherwise, and (iii) any Taxes arising out of or relating to any LawContract with a Related Party of a WCG Company. The right of Providence Indemnified Parties to indemnification under this Section 10.1.3 shall not be affected by the fact that such deficiency, which Taxes relate to an event adjustment or transaction assessment is made against or imposed upon a member of Providence Indemnified Parties as a result of the fact that, after the Closing Date, the WCG Companies shall be included in the consolidated federal income tax returns filed by Providence Indemnified Parties.
10.1.4 Sellers Obligations and Obligations of any WCG Company constituting long-term debt.
10.1.5 Any Proceeding against Providence Indemnified Parties by any Person arising out of or caused by, directly or indirectly, any act or omission of any WCG Company, or any of its equity holders, managers, officers, employees, agents or representatives, occurring at any time on or before the Closing Date; or.
10.1.6 Any Proceeding disclosed on Schedule 3.20.
10.1.7 Any Obligation (fincluding, without limitation, Taxes) obligations, limited to reasonable, documented, arising out of pocket costs or related to any Contract with a Related Party of a WCG Company.
10.1.8 Any Obligation to pay bonuses in the Ordinary Course.
10.1.9 Any Obligation to Scotia Capital (including any indemnification Obligation) or other costs, expenses and expensesfees arising out of or relating to the sale of or financing of the WCG Companies, incurred by Purchaser after except the Additional Payment.
10.1.10 The failure of Providence to actually receive full payment on all Closing Date Receivables within six (6) months of the Closing Date under the WildBlue Agreement, solely to the extent such failure causes the Realized Working Capital to be less than $5,200,000 and the failure of Sellers to pay the shortfall, if any, within three (3) Business Days. “Realized Working Capital” shall mean all components of Working Capital as finally determined pursuant to Section 2.2.3 except that such obligations were necessary the amount of Accounts Receivable that is actually collected within six (6) months of the Closing Date shall be substituted for the GES Development (as such term is defined in amount of Accounts Receivable shown on the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out finally determined calculations of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesWorking Capital.
Appears in 1 contract
Indemnification by the Sellers. Subject to the terms and conditions of this Article VII, the Sellers, severally in the proportions of their relative ownership of the Company Membership Interests, as set forth in Schedule 2.01, shall indemnify, defend and hold harmless Buyer and its Affiliates (collectively, the “Buyer Indemnitees”) from and against any and all claims, losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Damages”), incurred by any of the Buyer Indemnitees by reason of or resulting from any breach by Sellers or Company of any of their representations, warranties, covenants or agreements contained in this Agreement (collectively “Buyer Claims”). Notwithstanding the foregoing, the indemnification obligations of the Sellers and Company pursuant to this Section 12.46.02 shall be subject to the following limitations:
(i) No indemnification shall be required to be made by the Sellers or Company pursuant to this Section 6.02 with respect to any Buyer Claims to the extent that the aggregate amount of Damages incurred by Buyer exceeds Two Hundred and Fifty Thousand ($250,000.00) in total amount.
(ii) No indemnification shall be required to be made by Sellers or Company pursuant to this Section 6.02 with respect to any Buyer Claims unless and until the aggregate amount of Damages incurred by the Buyer Indemnitees with respect to all Buyer Claims exceeds Two Hundred and Fifty Thousand and No/100 Dollars ($250,000.00), it being agreed and understood that, if such amount is exceeded, the Sellers agree shall not be liable to jointly and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses incurred or suffered by the Purchaser or its Affiliates full extent of such Damages but shall be liable only to the extent that the aggregate amount of Damages incurred by the Buyer Indemnitees exceeds One Hundred Thousand and No/100 Dollars ($100,000.00).
(iii) The amount of Damages required to be paid by the Sellers or Company to the Buyer Indemnitees pursuant to this Section 6.02 as a result of any Buyer Claim shall be reduced to the extent of any amounts to which the Buyer Indemnitees are entitled to receive pursuant to the terms of the insurance policies (if any) covering such Buyer Claim.
(iv) The amount of Damages required to be paid by the Sellers or Company to the Buyer Indemnitees pursuant to this Section 6.02 as a result of any Buyer Claim shall be reduced by the amount of any Tax benefit actually realized by the Buyer Indemnitees as a result of such Buyer Claim (the “Buyer Claim Reduction Amount”).
(v) No indemnification shall be required to be made by the Sellers or Company pursuant to this Section 6.02 with respect to any Buyer Claims arising out of any or resulting from the breach of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any Seller in this Agreement or any breach of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit of Sellers and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to Company contained in Article III if the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Dateor Company, (ii) in the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; providedthem, can establish that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring Buyer had actual knowledge on or before the Closing Date; orDate of the event, occurrence, condition or circumstance constituting such breach.
(fvi) obligations, The indemnification obligations of the Sellers and the Company pursuant to this Section 6.02 shall be limited to reasonableactual damages and shall not include incidental, documentedconsequential, out indirect, punitive or exemplary damages.
(vii) All indemnification obligations of pocket costs the Sellers and expenses, incurred by Purchaser after Company shall be made in cash or at the Closing Date under option of the WildBlue Agreement, solely Sellers and Company in shares of Buyer Common Stock having a fair market value based upon the 60-Day Average Adjusted Price equal to the extent that amount of such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesobligation.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, the Sellers agree to jointly shall indemnify, defend and severally indemnify hold harmless the Purchaser, Buyer and its Affiliates, Affiliates and their respective officers, directors, officers, shareholdersemployees, agents and employeesrepresentatives (collectively, and their respective heirs, successors and assigns (each, a the “Purchaser Buyer Indemnified PartyParties”) against, and agrees to hold the Purchaser and its Affiliates harmless fromreimburse any Buyer Indemnified Party for, any and all Losses incurred that such Buyer Indemnified Party may at any time suffer or suffered by the Purchaser incur, or its Affiliates to the extent arising out become subject to, as a result of any of the followingor in connection with:
(ai) any the inaccuracy or breach of any representations or any inaccuracy in any representation or warranty warranties made by any Seller the Sellers in this Agreement or in the certificates furnished by the Sellers pursuant to Sections 2.05(e) and 7.03(a);
(ii) any breach or failure by the Sellers to perform any of their covenants or obligations contained in this Agreement; or
(iii) any inaccuracy Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any representation Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the contrary, (i) the Sellers shall not be required to indemnify, defend or warranty made by hold harmless any Seller Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds a dollar amount equal to $163,164.97 (the “Deductible Amount”), after which the Sellers shall be obligated for all Losses of the Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in any Related Agreement or any document delivered by such Person at excess of the ClosingDeductible Amount up to a dollar amount equal to $1,631,649.74; provided, however, that no Seller shall have liability under the limitations on indemnification set forth in this Section 12.2(a9.02(b)(i) for shall not apply to any indemnification claim brought as a result of the inaccuracy or breach of or inaccuracy in any representation or warranty unless (i) in the case of all representations and warranties except for Benefit and Environmental Warranties, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, Fundamental Representation; (ii) in the case of Benefit and Environmental Warranties, a written notice cumulative indemnification obligation of the Purchaser Indemnified Party’s claim is given to Sellers under Section 9.02(a)(i) shall in no event exceed the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, Purchase Price; and (iii) in the case of Tax Warranties, a written notice indemnification obligation of the Purchaser Indemnified Party’s claim is given Sellers under Section 9.02(a)(i) with respect to a breach of Section 3.22 (Tax Matters) shall not be subject to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expensesDeductible Amount.
Appears in 1 contract
Indemnification by the Sellers. Subject to Section 12.4(a) From and after the Closing, each of NST and the Sellers agree to jointly and severally indemnify the PurchaserXxxxxx Group, its Affiliatesseverally, and their respective directorsnot jointly, officers, shareholders, agents shall indemnify and employees, hold Buyer and their respective heirs, successors Harriscope harmless from and assigns (each, a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, against any and all Losses incurred or suffered by the Purchaser or its Affiliates to the extent Claims (as defined below) arising out of or accruing from (i) any misrepresentation or breach of the following:
(a) any breach of representations or any inaccuracy in any representation or warranty warranties made by any NST or the Xxxxxx Group relating solely to NST, Harriscope, the Stockholders, the Shares or the NST Venture Interest (the "Seller Matters") set forth in this Agreement or in any breach certificate delivered by NST or the Xxxxxx Group or in any schedule or exhibit furnished to Buyer pursuant to this Agreement at or before the Closing and relating to the Seller Matters, and (ii) any non-compliance by NST or the Xxxxxx Group of any covenants, agreements or undertakings made by such party contained in or made pursuant to this Agreement relating to the Seller Matters.
(b) From and after the Closing, each of NST and the Xxxxxx Group, shall indemnify and hold Buyer and Harriscope harmless from and against any and all liabilities, damages, losses, costs and expenses, including reasonable attorney's fees (collectively, "CLAIMS"), arising out of or any inaccuracy in any representation or warranty made by any Seller in any Related Agreement or any document delivered by such Person at the Closing; provided, that no Seller shall have liability under this Section 12.2(a) for any breach of or inaccuracy in any representation or warranty unless accruing from (i) any misrepresentation or breach of the representations and warranties of NST or the Xxxxxx Group set forth in this Agreement relating other than to Seller Matters or in any certificate delivered by NST or the Xxxxxx Group or in any schedule or exhibit furnished to Buyer pursuant to this Agreement at or before the Closing relating other than to Seller Matters; (ii) except as explicitly provided in Section 5, any non-compliance by NST or the Xxxxxx Group with any covenants, agreements or undertakings of the Sellers, the Joint Venture or Harriscope contained in or made pursuant to this Agreement relating other than to Seller Matters; (iii) any and all Taxes (including any Taxes imposed on Harriscope, the Joint Venture, Buyer, or any affiliated group of which Buyer is or will be a member) relating to the income, business, property or operations of the Joint Venture or Harriscope or the Assets or any other Taxes (including any Taxes arising as a result of the several tax liability of members of an affiliated group under U.S. Treasury Regulations Section 1.1502-6) for which the Joint Venture or Harriscope may be liable (A) in respect of any taxable period ending on or prior to the Closing Date, or, in the case of all representations and warranties except for Benefit and Environmental Warrantiesany taxable period that includes, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business but does not end on the date that is eighteen (18) months after the Closing Date, the portion of such period ending on the Closing Date (iia "PRE-CLOSING PERIOD") or (B) in respect of any period (or portion thereof) beginning on or after the case of Benefit and Environmental Warranties, a written notice of the Purchaser Indemnified Party’s claim is given Closing Date to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Dateextent such Taxes are attributable to events, and (iii) in the case of Tax Warrantiesoccurrences, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (transactions, sales, services or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this Section 12.2(a) for any breach of rentals occurring or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring performed on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (iiiv) any and all Taxes relating to NST's ownership of its NST Venture Interest or Harriscope's ownership of its interest in the Joint Venture, including Harriscope's and NST's proportionate share of any Person and all Taxes (other than Skywareincluding any real property taxes, personal property taxes or similar ad valorem obligations) levied or imposed upon, or in connection with, the Assets of the Joint Venture or Harriscope or the conduct or operation of the business of the Joint Venture on Skyware or before the Closing Date and (v) (A) the BMI liability described to Buyer in existence on the Closing Date (and any breach of the covenant set forth in Section 6.11(c), (B) the Drake Property or any breach of the representation set forth in Section 2.14 relating to the Drake Property or a breach of the covenant in Section 6.10), (C) matters relating to the general manager of the Joint Venture (including as a transferee relates to his employment or successorany statements, by contract promises or agreements entered into, if any) prior to Closing or (D) the Xxxx Xxxxxxx, WGBO and Chicago Communications Service as WSNS TV, Channel 44 claims referred to in Schedule 2.10 as relates to action or inaction occurring prior to Closing ((A), (B), (C) and (D) collectively, the "Subsection V Matters"). The obligation of Sellers to indemnify Buyer pursuant to clauses (iii) and (iv) in the preceding sentence shall exist regardless of whether the liability for any LawTaxes described in such clauses is reflected in the Current Financial Statements or has been disclosed to Buyer in any manner. The parties hereto agree that all real property taxes, use taxes, personal property taxes and similar AD VALOREM obligations that are levied on Harriscope or the Joint Venture or with respect to the Assets or the Business, or with respect to the assets or business of Harriscope, for assessment periods within which Taxes relate to an event or transaction occurring the Closing Date occurs shall be apportioned between pre- and post-closing periods based on the number of days in any such period falling on or before the Closing Date; or
(f) obligations, limited to reasonableon the one hand, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date, on the other hand. The parties hereto also agree that income or similar taxes levied for an assessment period within which the Closing Date under occurs should be allocated between pre- and post-closing periods by treating the WildBlue Agreement, Closing Date as if it were the last day of a short taxable period. The parties hereto agree that nothing contained in this Section 9.2 shall be interpreted as providing Buyer or Harriscope with the right to receive an indemnity payment for Taxes on any gain recognized by Harriscope arising solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that a consequence of (i) Purchaser shall cooperate in good faith with Sellers in order any sale or disposition after the Closing by Harriscope of all or a portion of the Harriscope Interest (including any sale or disposition of the Harriscope Interest resulting from the termination of the Joint Venture pursuant to minimize such out Section 708 of pocket costs and expensesthe Internal Revenue Code of 1986, and as amended (the "Code")) or (ii) if any sale or disposition by Harriscope on or after the Closing resulting from Buyer causing Harriscope to make an election under Section 338 of the Code.
(c) All amounts paid pursuant to Section 9 of this Agreement by one party to another party (other than interest payments) shall be treated by such out of pocket costs and expenses exceed $50,000 in parties as an adjustment to either the aggregateNST Purchase Price or the Harriscope Purchase Price, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses as applicable. If contrary to the extent that Purchaser obtains Andrew’s prior written consentintent of the parties any payment made pursuant to Section 9 of this Agreement is treated as taxable income of the recipient, not then the payor shall indemnify and hold harmless the recipient from any actual net liability for Taxes attributable to be unreasonably withheld, prior to incurring the receipt of such costs and expensespayment.
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Samples: Agreement to Purchase NST Venture Interest and Capital Stock (Telemundo Group Inc)
Indemnification by the Sellers. Subject to Section 12.4, the Sellers agree to jointly and severally indemnify the Purchaser, its Affiliates, and their respective directors, officers, shareholders, agents and employees, and their respective heirs, successors and assigns (each, i) a “Purchaser Indemnified Party”) against, and agrees to hold the Purchaser and its Affiliates harmless from, any and all Losses incurred or suffered breach by the Purchaser or its Affiliates to the extent arising out a Seller of any of the following:
(a) any breach of or any inaccuracy in any representation or warranty made by any such Seller in this Agreement or in any breach Schedule or certificate delivered pursuant hereto; and
(ii) a failure by a Seller to perform or comply with any covenant or agreement on the part of such Seller contained herein; and
(iii) the lease in respect of 600 North Pearl in Dallas, Texas, referred to in Section 4.11 of the Disclosure Schedule. The amount paid pursuant to the preceding sentence shall be paid to the Buyers or, at the Buyers' election, to the Company and shall be the amount required to put the Buyers or the Company, as the case may be, in the position it would have been in had such representation, warranty, covenant or agreement not been breached. Any payment made by a Seller under this Section 12.2 shall be treated as a reduction in the aggregate consideration received by such Seller from Buyer pursuant to this Agreement.
(b) Notwithstanding Section , the Sellers shall not have any inaccuracy obligation to indemnify Indemnified Parties from and against any Loss as a result of, arising from or in connection with clause (i) of Section : (i) until the Indemnified Parties have suffered aggregate Losses, by reason of all such breaches (excluding any such individual breaches or series of related breaches resulting in Losses of less than $U.S.10,000; provided, however, that all Losses for individual breaches or series of related breaches in excess of $U.S.10,000 shall be included) in excess of $U.S.95,000, provided that once the Indemnified Parties' aggregate Losses exceed $U.S.95,000, the Sellers shall indemnify the Indemnified Parties for all Losses in excess of $U.S.47,500; or (ii) to the extent the aggregate Losses the Indemnified Parties have suffered by reason of all such breaches of representations and warranties of the Sellers in this Agreement or in any Schedule or certificate delivered pursuant hereto exceed the Purchase Price (the "Cap"), in the absence of fraud or intentional misrepresentation, the Sellers will have no obligation to indemnify the Indemnified Parties from and against further Losses in excess of the Cap. For purposes of determining whether an event described in clause (i) of Section 12.2(a) has occurred, any requirement in any representation or warranty made by that an event or fact be material or have a Material Adverse Effect for such event or fact to constitute a misrepresentation or breach of such warranty shall be ignored.
(c) Notwithstanding anything to the contrary contained in Section 12.2(b) or anywhere else in this Agreement, the Designated Sellers shall, jointly and severally, and the other Sellers shall, severally and not jointly, indemnify and hold harmless, the Indemnified Parties from and against any Seller in any Related Agreement Loss incurred or any document delivered suffered by such Person at after the Closing; providedClosing Date as a result of, that no Seller shall have liability under this Section 12.2(a) for any breach of arising from or inaccuracy in any representation or warranty unless connection with:
(i) in the case of all representations and warranties except for Benefit and Environmental Warrantiesany fraudulent acts or intentional misconduct, Tax Warranties and Title and Authorization Warranties, a written notice of the Purchaser Indemnified Party’s claim is given which occurred prior to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date, by any of the Sellers, the Company, any of the Company Subsidiaries or any of their respective employees against a third party; PROVIDED, HOWEVER, that this Section shall not apply to negligence; and PROVIDED FURTHER that any such claim must have been asserted by such third party prior to the second anniversary of the date hereof;
(ii) in the case of Benefit and Environmental Warranties, a written notice failure of the Purchaser Company or the Company Subsidiaries to collect the full amount of the Buyer's Accounts Receivable after a reasonable period of time, provided that the Company or the Company Subsidiaries have used reasonable efforts, consistent with past practice, to collect such accounts receivable; and
(iii) any claim, action or other proceeding commenced by any Seller against the Indemnified Party’s claim is given Parties challenging the validity of the distributions to the Sellers no later than the close of business on the three (3) year anniversary of the Closing Date, and (iii) in the case of Tax Warranties, a written notice of the Purchaser Indemnified Party’s claim is given to the Sellers no later than the close of business on the 45th day after the expiration of the applicable statute of limitations as extended (or if such day is not a Business Day, the next Business Day), in each case with each such notice specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and, so far as practicable, the amount claimed; provided, further, that no Seller shall have any liability under this contemplated by Section 12.2(a) for any breach of or inaccuracy in a Real Property Title Warranty;
(b) any breach of or failure by any Seller to perform any of its covenants or obligations set out in this Agreement or any breach of or failure by any Seller to perform its covenants or obligations set out in any Related Agreement or any document delivered by such Seller at the Closing; provided, that the Sellers shall have no liability under this Section 12.2(b) for any such breach or failure occurring on or prior to the Closing Date unless a written notice of the Purchaser Indemnified Party’s claim is sent to the Sellers no later than the close of business on the date that is eighteen (18) months after the Closing Date;
(c) any Retained Obligation;
(d) any Seller’s failure to comply with any Bulk Sales Laws;
(e) all Taxes (or the nonpayment thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle Period, and (ii) any and all Taxes of any Person (other than Skyware) imposed on Skyware as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date; or
(f) obligations, limited to reasonable, documented, out of pocket costs and expenses, incurred by Purchaser after the Closing Date under the WildBlue Agreement, solely to the extent that such obligations were necessary for the GES Development (as such term is defined in the WildBlue Agreement) under such agreement and solely to the extent incurred prior and in order to obtain the GES Final Acceptance (as such term is defined in the WildBlue Agreement); provided, that (i) Purchaser shall cooperate in good faith with Sellers in order to minimize such out of pocket costs and expenses, and (ii) if such out of pocket costs and expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated to indemnify Purchaser for such costs and expenses to the extent that Purchaser obtains Andrew’s prior written consent, not to be unreasonably withheld, prior to incurring such costs and expenses.
Appears in 1 contract
