Indemnification Obligations of Seller. Subject to the limitations set forth in this Article IX, Seller shall defend and hold harmless Buyer and its Affiliates, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyer Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: (i) the Indemnified Claims (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Losses."
Appears in 1 contract
Samples: Stock Purchase Agreement (Rollins Truck Leasing Corp)
Indemnification Obligations of Seller. Subject If the Closing occurs, or as otherwise provided in Section 7.2, Seller, subject to the limitations set forth in this Article IXArticle, Seller shall defend will indemnify and hold harmless Buyer and its Affiliates, each of their respective stockholders, officers, directors, employees, agents directors and representatives and employees (in each of the heirs, executors, successors and assigns of any of the foregoing case in such capacities) (collectively, the "Buyer Indemnified PartiesIndemnitees") from), on a Net After-Tax Basis, against and in respect of any and all claimsLosses, liabilitieswhich may be incurred by Buyer Indemnitees during the relevant survival periods set forth in Section 8.1 by reason of:
(i) the breach as of the date of this Agreement of any representation or warranty made by Seller in this Agreement; 55 48
(ii) the breach by Seller of or failure by Seller to perform any of its covenants or agreements contained in this Agreement;
(iii) the matters disclosed on Schedule 8.2 and, obligationssubject to Section 8.4(a)(xii), losses, costs, expenses, penalties, fines and judgments Specified Items;
(at equity or at lawiv) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) Third-Party Claims arising out of or relating to: resulting from (iA) the Indemnified Claims (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and violation by any other claim or enforcement action Company of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case Environmental Laws to the extent occurring prior to the Closing; (B) any liability of the Companies to remediate Hazardous Materials arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as operation of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations Business prior to the Closing Date: workers' compensation; (C) any discharge, vehicle accident emission, disposal, deposit, release or discharge of Hazardous Materials (whether on or off of the Real Property) covered or regulated by Environmental Laws occurring in connection with the operation of the Business or activities at the Real Property prior to the Closing Date; or (D) the existence, storage or presence of Hazardous Materials in, on or under the buildings, structures and all other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits improvements on any portion of the Real Property prior to the Closing Date; in each case of clauses (A) through (D) other than employee compensation and benefits accrued for such Losses disclosed or arising out of matters disclosed on Schedule 8.2;
(v) any Tamms Claim; and
(vi) Excess Liabilities as a liability on the Final Closing Balance Sheet and reflected in the calculation finally determined pursuant to Section 1.5 (for purposes of the Closing Date Working Capitalthis clause (vi) only, indemnifiable Losses shall be deemed to be an amount equal to such Excess Liabilities). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Losses."
Appears in 1 contract
Indemnification Obligations of Seller. Subject Each Seller agrees to the limitations set forth in this Article IXindemnify, Seller shall defend defend, and hold harmless reimburse Buyer and its Affiliates, Affiliates (including the Acquired Companies) and each of their respective officers, directors, managers, members, partners, equityholders, Subsidiaries, employees, successors, heirs, assigns, agents and representatives (each, a “Buyer Indemnified Person”) for and hold harmless each Buyer Indemnified Person from and against and be liable for any Damages related to or arising, directly or indirectly, out of, caused by or resulting from the following:
(i) any breach or inaccuracy of any representation or warranty made by such Seller in this Agreement or such Seller’s Seller Closing Certificate;
(ii) any breach or nonperformance of or noncompliance with any covenant, obligation or agreement of such Seller or, prior to the heirsClosing, executors, successors and assigns of any of the foregoing (collectivelysuch Seller’s Acquired Companies, the "Buyer Indemnified Parties") from, against and set forth in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: (i) the Indemnified Claims (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); this Agreement;
(iii) any Payoff Indebtedness, Seller Transaction Expenses or Change of Control Expenses not paid or satisfied in full before the Environmental Claims (excluding Closing or included in the Orlando North VOH Plume) and any other claim or enforcement action determination of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of BuyerSeller Final Closing Payment, in each case to the extent arising out such Seller Transaction Expenses or Change of Control Expenses have not been taken into account in the determination of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing Final Cash Purchase Price;
(collectively, "Environmental Liabilities"iv) to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by included in the Company but is no longer owned or leased by the Company as determination of the Seller Final Closing Date (a "Prior Operations Liability"); and Payment, any Indemnified Taxes or other Indebtedness;
(v) the matters described on Exhibit J; or
(vi) any accounts receivable of Fraud on the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount part of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Acquired Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident Closing) or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Lossessuch Seller."
Appears in 1 contract
Indemnification Obligations of Seller. Subject to the limitations set forth contained in this Article IXVII, after the Closing, Seller shall defend indemnify Buyer, the Company and hold harmless Buyer and its their respective Affiliates, each of their respective shareholders, partners, officers, directors, employees, agents and representatives and each of the heirsagents, executorsrepresentatives, successors and permitted assigns (collectively, “Buyer Indemnified Parties”) and save and hold each of them harmless against and pay on behalf of or reimburse such Buyer Indemnified Parties as and when incurred for any loss, liability, action, cause of action, cost, damage, Tax or expense, whether or not arising out of third party claims (including interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing and after deducting all insurance proceeds in connection with any of the foregoing) (collectively, the "“Losses”, and each a “Loss”), which any such Buyer Indemnified Parties"Party suffers, sustains or becomes subject to, as a result of, in connection with, relating or incidental to or by virtue of:
(i) from, against and in respect any facts or circumstances which constitute a breach of any representation or warranty of the Company or Seller under this Agreement, or in any of the certificates or other instruments or agreements furnished by the Company or Seller pursuant to this Agreement; provided, that for purposes of this Article VII, the qualifications as to materiality and all claimsMaterial Adverse Effect (but not Knowledge) contained in such representations and warranties shall not be given effect;
(ii) any nonfulfillment or breach of any covenant, liabilitiesagreement or other provision by the Company (prior to the Closing) or Seller under this Agreement;
(iii) any nonfulfillment or breach of any covenant, obligationsagreement or other provision by the Seller under Section 8.1(a) of this Agreement resulting in any inability of the Buyer to deduct, lossesdepreciate, costsamortize or otherwise make use of the step up in asset basis that would have arisen as a result of a Code Section 338(h)(10) election (any Losses arising as a result of such nonfulfillment or breach to be calculated using the highest marginal Federal, expensesState and local tax rates); provided, penaltieshowever, fines that Seller shall have no obligations under this Section 7.2(a)(iii) if Buyer does not reasonably cooperate with Seller to timely make joint elections pursuant to Section 8.1(a)(i) or if Buyer files a joint election in violation of Section 8.1(a)(iii).
(iv) to the extent the following items are not included in the final determination of the Purchase Price (as determined pursuant to Section 1.4): (A) any Closing Indebtedness, (B) any Unpaid Seller Expenses, (C) any Pre-Closing Taxes, (D) any liabilities arising from any earnings, earn outs, employee bonus payoff and judgments (at equity or at law) and damages whenever arising or incurred (any similar arrangements, under the Prior Stock Purchase Agreement, including, without limitation, amounts paid in settlementthe Bonus Pool, costs of investigation and reasonable attorneys' fees and expenses(E) arising out of or relating to: ,other than (i) the Indemnified Claims (as hereinafter definedthose liabilities specifically set forth on Schedule 7.2(a)(iv); , and (ii) those liabilities which arise after the Orlando North VOH Plume (as hereinafter defined); (iii) Closing Date pursuant to the Environmental Claims (excluding continuation of the Orlando North VOH Plume) Material Contracts in the ordinary course of business solely with respect to the operation of the Company’s and the Company’s Subsidiaries’ business after the Closing, any other claim and all liabilities of Company or enforcement action of any governmental authority or any third party (other than of the Orlando North VOH Plume) and any remediation activities of BuyerCompany’s Subsidiaries based upon, in each case to the extent arising out of the generationof, dischargerelating to or otherwise in connection with any events, releaseactions, treatmentoccurrences, transportationomissions, storage circumstances or disposal by the Company of any Hazardous Materials at any time conditions occurring or existing on or prior to the Closing Date (collectivelywhether asserted prior to, "Environmental Liabilities"on or after the Closing Date). For the avoidance of doubt, except as provided in the preceding clause (ii), the Seller indemnifies Buyer, the Company and the other Buyer Indemnified Parties for all liabilities and obligations that are not listed on Schedule 7.2(a)(iv) but are listed on any other Schedule hereto. If and to the extent not constituting a Prior Operations Liability (as defined below)any provision of this Section 7.2 is unenforceable for any reason, (iv) any Environmental Liability arising with respect Seller hereby agrees to real property that was previously owned or leased by make the maximum contribution to the payment and satisfaction of the Loss for which indemnification is provided for in this Section 7.2 which is permissible under applicable Laws. Notwithstanding anything contained herein, in no event shall the Company but is no longer owned be required to provide indemnification or leased by the Company as contribution for any obligation of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing DateSeller under this Section 7.2; provided, (A) Buyer has used its reasonable best efforts that this sentence shall not apply as to collect such receivable, (B) in the event Buyer seeks indemnity any proceeds a director or officer would be entitled to pursuant to and under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy ’s director and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Lossesofficers insurance."
Appears in 1 contract
Indemnification Obligations of Seller. Subject to Sections 9.3 and 9.7, from and after the limitations set forth in this Article IXClosing, Seller and Parent, jointly and severally, shall indemnify, defend and hold harmless Buyer and its Affiliates, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyer Purchaser Indemnified Parties") Parties from, against against, and in with respect of to any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) Losses arising out of or relating to: :
(a) any inaccuracy in or breach of any representation or warranty of Seller or the Parent set forth in this Agreement, or any other Seller Related Agreement; provided, however, that for purposes of determining whether there has been a breach of any representation of warranty, the representations and warranties shall be deemed to have been made without any qualification as to materiality and, accordingly, all references therein to "material", "in all material respects" and similar qualifications as to materiality shall be deemed to be deleted therefrom, and the amount of any Losses that are the subject matter of a claim for indemnification hereunder shall be computed without giving effect to such materiality qualifications, i.e. the entire amount of resulting Losses shall be indemnified against hereby, not just the portion of the Losses above the materiality threshold;
(b) any breach of any covenant, agreement or undertaking made by the Company, Seller or Parent in this Agreement or in any Seller Related Agreement;
(c) the operations, actions or omissions of any Company Party prior to the Closing, other than (i) the Indemnified Claims obligations of a Company Party under any Company Contracts or Governmental Authorizations held by a Company Party (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case to the extent arising out of the generation, discharge, release, treatment, transportation, storage such obligations were not required to be performed on or disposal by the Company of any Hazardous Materials at any time prior to the Closing Date and accrue and relate to the operation of the business of such Company Party subsequent to the Closing Date), and (collectivelyii) current liabilities of the Company Parties of a type and in the amount that is reflected on the Final Working Capital Schedule, "Environmental Liabilities"provided that the Purchaser shall be entitled to indemnification for Losses relating to such current liabilities in excess of the amounts reflected on the Final Working Capital Schedule;
(d) any Company Debt or Company Expenses to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned paid off or leased by deducted from the Company but is no longer owned or leased by the Company Purchase Price as of the Closing Date Closing;
(a "Prior Operations Liability"); and (ve) any accounts receivable Claim by any stockholder of the Parent;
(f) any product distributed, shipped or manufactured by, or any services provided by, any Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations Party prior to the Closing Date: workers' compensation, vehicle accident ;
(g) any Credit Memos that are redeemed or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits applied by the Company in accordance with customary past practice; or
(other than employee compensation and benefits accrued as a liability on h) the Final Closing Balance Sheet and reflected in the calculation termination of the Closing Date Working Capital)North American Breaker Co., Inc. Profit Sharing Plan. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages Losses of the Buyer Purchaser Indemnified Parties described in this Section 9.1 as to which the Buyer Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer “Purchaser Losses."”
Appears in 1 contract
Samples: Purchase Agreement (Signature Group Holdings, Inc.)
Indemnification Obligations of Seller. (a) Subject to the limitations set forth in terms of Articles VIII and IX and the other terms of this Article IXX, from and after the Closing Date, Seller shall will indemnify, defend and hold harmless Buyer and its Affiliates, each of Affiliates and their respective directors, officers, directors, employees, employees and agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "“Buyer Indemnified Parties"”) from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) Losses arising out of or relating to: resulting from:
(i) any breach of any representation or warranty (other than any of Seller’s Fundamental Representation) made by Seller in Article III or in any certification in the Indemnified Claims (as hereinafter definedcertificate delivered by Seller to Buyer at Closing pursuant to Section 7.2(b); provided, however, that for purposes of determining whether any representations and warranties (other than any representations and warranties set forth in Section 3.11) have been breached, all Seller Material Adverse Effect qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded;
(ii) any breach of any Fundamental Representation made by Seller in Article III or in any certification in the Orlando North VOH Plume (as hereinafter definedcertificate delivered by Seller to Buyer at Closing pursuant to Section 7.2(b); provided, however, that for purposes of determining whether any representations and warranties have been breached, all Seller Material Adverse Effect qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded;
(iii) any breach of any covenant, agreement or undertaking made by Seller in this Agreement; and
(iv) the Environmental Claims (excluding the Orlando North VOH Plume) and Retained Obligations; Notwithstanding any other claim or enforcement action provision of Article X in this Agreement to the contrary, Buyer shall have no rights under this Article X in respect of any governmental authority Article IX Environmental Liability or any third party in respect of Article VIII.
(b) Neither Seller (other than the Orlando North VOH Plume) and Seller in breach of this Agreement), its Affiliates nor any remediation activities other Seller Subject Parties shall have any liability under any provision of Buyer, in each case this Agreement for any Loss to the extent arising out of the generationthat such Loss relates to any action taken by Xxxxx, discharge, release, treatment, transportation, storage Seller or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following other Person after the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), . Buyer shall assign such receivable take and shall cause its Affiliates to take all proceeds thereof reasonable steps to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount mitigate any Loss upon becoming aware of any uncollected receivables. For purposes of this Agreementevent which would reasonably be expected to, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensationdoes, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Lossesgive rise thereto."
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification Obligations of Seller. Subject to the limitations set forth in terms and conditions of this Article IXArticle 9, from and after the Closing, the Seller shall indemnify, defend and hold harmless Buyer Purchaser, and its Affiliatesdirectors, each of their respective officers, directorsemployees, employeesmanagers, Affiliates, agents and representatives (each an “Indemnified Party” and each of collectively, the heirs“Indemnified Parties”) from and against any and all Losses incurred or sustained by, executorsor imposed upon, successors and assigns any Indemnified Party resulting or arising from any inaccuracy in or breach of any of the foregoing (collectively, representations or warranties made by the "Buyer Indemnified Parties") from, against and in respect Seller or the Company pursuant to Article 3 or Article 4. In the event of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: (i) the Indemnified Claims (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party claim which is the basis of a Claims Notice, Purchaser shall timely notify the Seller, provide Seller copies of all pleadings, notices and communications with respect to such claim (other than provided, however, that failure to timely notify or provide all such information \ documents shall not release the Orlando North VOH Plume) and any remediation activities of BuyerSeller from its indemnification obligations hereunder, in each case except to the extent arising out Seller was adversely affected by such failure), and shall have the right in its sole discretion to conduct the defense of and to settle such third party claim; provided, however, that Purchaser shall not be entitled, without the prior written consent of the generationSeller, dischargeadmit any liability, release, treatment, transportation, storage permit a default or disposal by the Company consent to entry of any Hazardous Materials at judgment with respect to, or settle, compromise, or offer to settle or compromise, any time third party claim, without the prior written consent of the Seller, which shall not be unreasonably withheld. Purchaser will use all reasonable efforts to resolve the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability EMT Matter (as defined below)in Schedule 4.9(a) of the Disclosure Schedule) without repayment to EMT. In the event that, (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by notwithstanding such efforts being exercised, EMT brings a claim against the Company, the Company but is no longer owned or leased by and the Purchaser shall timely notify the Seller, and shall have the right, with seven (7) Business days prior notice to the Seller, to conduct the defense of and/or to settle such claim. Within said seven (7) Business days, Seller may approve to settle with EMT, and if so approved the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of shall so settle. If the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited required to the face pay to EMT, whether in settlement or upon court order, such amount (including reasonable legal expenses) will be paid out of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor amount placed in escrow pursuant to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Losses9.4."
Appears in 1 contract
Samples: Share Purchase Agreement (COMSovereign Holding Corp.)
Indemnification Obligations of Seller. Subject (a) Seller agrees to the limitations set forth in this Article IX, Seller shall defend and hold harmless Buyer indemnify Purchaser and its AffiliatesAffiliates (including the Company after the Closing Date), each of their respective stockholders, officers, directors, employees, agents and agents, representatives and each of the heirs, executors, successors and assigns (collectively, the “Purchaser Indemnitees”) in respect of, and save and hold each Purchaser Indemnitee harmless against and pay on behalf of or reimburse each Purchaser Indemnitee as and when incurred, any Losses which any Purchaser Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of:
(i) any facts or circumstances which constitute a misrepresentation or breach by Seller of any representation or warranty set forth in this Agreement (including any Schedule), or any certificate delivered by Seller pursuant to this Agreement; provided however, that Seller is given written notice of such Loss during the applicable survival period in Section 5.1 above;
(ii) any and all claims against Purchaser (and/or its affiliates) arising out of the operation of the Existing KRR Co-Branded Units, including any third-party claims arising under any Co-Branding Agreement, and the time limitations pertaining to survivorship of representations and warranties set forth in Section 5.1 shall not apply; and
(iii) any nonfulfillment or breach of any covenant of Seller set forth in this Agreement.
(b) Notwithstanding the foregoing, Seller shall not be required to indemnify Purchaser Indemnitees in respect of any Losses any Purchaser Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of any of the foregoing occurrences referred to in Section 5.2(a) or elsewhere in this Agreement unless the aggregate amount of all such Losses exceeds $100,000 (collectively, the "Buyer Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: (i) the Indemnified Claims (as hereinafter defined“Loss Threshold”); (ii) provided, however, that in such event, Seller shall be responsible for the Orlando North VOH Plume (as hereinafter defined)full amount of all such Losses from the first dollar of Losses suffered; (iii) provided further that no Purchaser Indemnitee shall have the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case right to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising indemnification with respect to real property any claim where the Losses with respect thereto are less than $10,000 and no such Losses shall be taken into account in determining whether or the extent to which the Loss Threshold has been met or exceeded; provided further, that was previously owned or leased by in no event shall Seller be obligated to indemnify Purchaser Indemnitees for such Losses in excess of $600,000 (the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"“Cap”); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (Afurther, however, that any claims for indemnification arising under Section 5.2(a)(ii) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will not be limited subject to the face amount of any uncollected receivables. For purposes of Loss Threshold, the Cap or be counted towards the Cap.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the "Indemnified Claims" nothing in this Agreement shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and limit or restrict any claim of the type described below brought against the Company (Purchaser Indemnitees’ right to maintain or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence recover any amounts in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident any action or other personal injury claim based upon fraud or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Lossesintentional misrepresentation."
Appears in 1 contract
Indemnification Obligations of Seller. (a) Subject to the limitations set forth in terms of Articles VIII and IX and the other terms of this Article IXX, from and after the Closing Date, Seller shall will indemnify, defend and hold harmless Buyer and its Affiliates, each of Affiliates and their respective directors, officers, directors, employees, employees and agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "“Buyer Indemnified Parties"”) from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) Losses arising out of or relating to: resulting from:
(i) any breach of any representation or warranty (other than any of Seller’s Fundamental Representation) made by Seller in Article III or in any certification in the Indemnified Claims (as hereinafter definedcertificate delivered by Seller to Buyer at Closing pursuant to Section 7.2(b); provided, however, that for purposes of determining whether any representations and warranties (other than any representations and warranties set forth in Section 3.11) have been breached, all Seller Material Adverse Effect qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded;
(ii) any breach of any Fundamental Representation made by Seller in Article III or in any certification in the Orlando North VOH Plume (as hereinafter definedcertificate delivered by Seller to Buyer at Closing pursuant to Section 7.2(b); provided, however, that for purposes of determining whether any representations and warranties have been breached, all Seller Material Adverse Effect qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded;
(iii) any breach of any covenant, agreement or undertaking made by Seller in this Agreement; and
(iv) the Environmental Claims (excluding the Orlando North VOH Plume) and Retained Obligations; Notwithstanding any other claim or enforcement action provision of Article X in this Agreement to the contrary, Buyer shall have no rights under this Article X in respect of any governmental authority Article IX Environmental Liability or any third party in respect of Article VIII.
(b) Neither Seller (other than the Orlando North VOH Plume) and Seller in breach of this Agreement), its Affiliates nor any remediation activities other Seller Subject Parties shall have any liability under any provision of Buyer, in each case this Agreement for any Loss to the extent arising out of the generationthat such Loss relates to any action taken by Buyer, discharge, release, treatment, transportation, storage Seller or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following other Person after the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), . Buyer shall assign such receivable take and shall cause its Affiliates to take all proceeds thereof reasonable steps to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount mitigate any Loss upon becoming aware of any uncollected receivables. For purposes of this Agreementevent which would reasonably be expected to, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensationdoes, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Lossesgive rise thereto."
Appears in 1 contract
Samples: Asset Purchase Agreement (Midstates Petroleum Company, Inc.)
Indemnification Obligations of Seller. Subject (a) From and after the Closing, subject to the limitations set forth in terms of this Article IX, Seller shall defend indemnify and hold harmless Buyer and its Affiliates, each of Affiliates (other than the Partnership) and their respective directors, officers, directors, employees, agents and representatives and each of the heirsstockholders, executorspartners, members, agents, attorneys, representatives, successors and assigns of any of the foregoing (collectively, the "“Buyer Indemnified Parties") from”), from and against and in respect of any and all claimslosses, damages, liabilities, obligations, losses, costs, expenses, penalties, fines costs and judgments expenses (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, including reasonable costs of investigation and reasonable attorneys' fees ’ fees), interest, penalties, judgments, settlements, claims, obligations, deficiencies, demands, damages, fines, claims, suits, actions, causes of action, assessments, awards, whether or not involving a third party claim (collectively, “Losses”) incurred by any Buyer Indemnified Party by reason of (i) any breach of any of the representations or warranties (in each case, when made) of Seller in Article IV and expenses(ii) arising out any breach of any of the covenants or relating toagreements of Seller in this Agreement that by their terms are to be performed in whole or in part, or which prohibit actions, subsequent to the Closing Date.
(b) Except with respect to Losses incurred by any Buyer Indemnified Party as a result of a breach of Seller’s representations or warranties set forth in Section 4.19 (Taxes), the obligation of Seller to indemnify any Buyer Indemnified Party for Losses is subject to the following limitations: (i) no Buyer Indemnified Party shall be entitled to make a claim against Seller for indemnification under Section 9.2(a)(i) (“Buyer Claim”) unless and until the aggregate amount of Losses incurred by such Buyer Indemnified Claims Party with respect to an event or occurrence and all other events or occurrences arising from the same circumstances exceeds $15,000 (as hereinafter defineda “Base Claim”); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case Seller shall not be required to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the provide indemnification to which such Buyer is entitled will be limited Indemnified Party pursuant to Section 9.2(a)(i) unless the face aggregate amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of Losses incurred by all the Buyer Indemnified Parties described in this Section 9.1 as to which respect of Buyer Claims constituting Base Claims exceeds 2.5% of the Closing Consideration (the “Basket”), and then the Buyer Indemnified Parties are shall be entitled to indemnification are hereinafter collectively referred for only the amount in excess of the Basket; and (iii) in no event shall the aggregate amount of Losses for which Seller is obligated to as "indemnify the Buyer LossesIndemnified Parties pursuant to Section 9.2(a)(i) exceed 10% of the Closing Consideration (the “Ceiling”)."
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (Tc Pipelines Lp)
Indemnification Obligations of Seller. Subject (a) Seller agrees to the limitations set forth in this Article IX, Seller shall defend and hold harmless Buyer indemnify Purchaser and its AffiliatesAffiliates (including the Company after the Closing Date), each of their respective stockholders, officers, directors, employees, agents and agents, representatives and each of the heirs, executors, successors and assigns (collectively, the “Purchaser Indemnitees”) in respect of, and save and hold each Purchaser Indemnitee harmless against and pay on behalf of or reimburse each Purchaser Indemnitee as and when incurred, any Losses which any Purchaser Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of:
(i) any facts or circumstances which constitute a misrepresentation or breach by Seller of any representation or warranty set forth in this Agreement (including any Schedule), or any certificate delivered by Seller pursuant to this Agreement; provided however, that Seller is given written notice of such Loss during the applicable survival period on Section 5.1 above;
(ii) any nonfulfillment or breach of any covenant of Seller set forth in this Agreement; and
(iii) any liability in excess of $10,000 in respect of the litigation entitled Xxxxxxxxx Xxxxxxx, personal Representative of the Estate of Xxxxx Xxxxxxx v. Hollywood Subs, Inc. and Miami Subs Corporation, Case No. 06-011404 CACE 12.
(b) Notwithstanding the foregoing, Seller shall not be required to indemnify Purchaser Indemnitees in respect of any Losses any Purchaser Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of any of the foregoing occurrences referred to in Section 5.2(a) unless the aggregate amount of all such Losses exceeds $100,000 (collectively, the "Buyer Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: (i) the Indemnified Claims (as hereinafter defined“Loss Threshold”); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivablehowever, (B) that in the event Buyer seeks indemnity under this Section 9.1(ivthat the Loss Threshold is exceeded, Seller shall be required to indemnify Purchaser Indemnitees for 30% of the first $100,000 of Losses; provided further, however, that in no event shall Seller be obligated to indemnify Purchaser Indemnitees for such Losses in excess of $450,000 (the “Cap”), Buyer . The Loss Threshold and Cap shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited not apply to the face amount Seller’s obligation to provide indemnification pursuant to Section 5.2(a). Notwithstanding the above, the Cap shall not apply if any liability requiring indemnification was caused by the fraud or intentional misrepresentations or intentional omissions of any uncollected receivables. For purposes of Seller, its officers, directors, employees and agents.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the "Indemnified Claims" nothing in this Agreement shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and limit or restrict any claim of the type described below brought against the Company (Purchaser Indemnitees’ right to maintain or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence recover any amounts in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident any action or other personal injury claim based upon fraud or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Lossesintentional misrepresentation."
Appears in 1 contract
Indemnification Obligations of Seller. Subject (a) From and after the Closing, subject to the limitations set forth in terms of this Article IX, Seller shall defend indemnify and hold harmless Buyer and its Affiliates, each of Affiliates (other than the Partnership) and their respective directors, officers, directors, employees, agents and representatives and each of the heirsstockholders, executorspartners, members, agents, attorneys, representatives, successors and assigns of any of the foregoing (collectively, the "“Buyer Indemnified Parties") from”), from and against and in respect of any and all claimslosses, damages, liabilities, obligations, losses, costs, expenses, penalties, fines costs and judgments expenses (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, including reasonable costs of investigation and reasonable attorneys' fees ’ fees), interest, penalties, judgments, settlements, claims, obligations, deficiencies, demands, damages, fines, claims, suits, actions, causes of action, assessments, awards, whether or not involving a third party claim (collectively, “Losses”) incurred by any Buyer Indemnified Party by reason of (i) any breach of any of the representations or warranties (in each case, when made) of Seller in Article IV and expenses(ii) arising out any breach of any of the covenants or relating toagreements of Seller in this Agreement that by their terms are to be performed in whole or in part, or which prohibit actions, subsequent to the Closing Date.
(b) Except with respect to Losses incurred by any Buyer Indemnified Party as a result of a breach of Seller’s representations or warranties set forth in Section 4.19 (Taxes), the obligation of Seller to indemnify any Buyer Indemnified Party for Losses is subject to the following limitations: (i) no Buyer Indemnified Party shall be entitled to make a claim against Seller for indemnification under Section 9.2(a)(i) (“Buyer Claim”) unless and until the aggregate amount of Losses incurred by such Buyer Indemnified Claims Party with respect to an event or occurrence and all other events or occurrences arising from the same circumstances exceeds $75,000 (as hereinafter defineda “Base Claim”); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case Seller shall not be required to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the provide indemnification to which such Buyer is entitled will be limited Indemnified Party pursuant to Section 9.2(a)(i) unless the face aggregate amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of Losses incurred by all the Buyer Indemnified Parties described in this Section 9.1 as to which respect of Buyer Claims constituting Base Claims exceeds 2.5% of the Closing Consideration (the “Basket”), and then the Buyer Indemnified Parties are shall be entitled to indemnification are hereinafter collectively referred for only the amount in excess of the Basket; and (iii) in no event shall the aggregate amount of Losses for which Seller is obligated to as "indemnify the Buyer LossesIndemnified Parties pursuant to Section 9.2(a)(i) exceed 10% of the Closing Consideration (the “Ceiling”)."
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (Tc Pipelines Lp)
Indemnification Obligations of Seller. Subject to the limitations set forth provisions of Sections 10.4 and 10.8, Seller and Holdings shall, jointly and severally, indemnify, save and keep harmless Purchaser and its successors and permitted assigns ("Purchaser Indemnitees") against and from all Damages sustained or incurred by any of them resulting from, relating to, or arising out of or by virtue of:
(a) any inaccuracy in or breach of any representation and warranty made by Seller in this Agreement (it being agreed by the parties hereto that such representations and warranties shall for purposes of this Article IXX be deemed to have been made again at the Closing) or in any closing document delivered to Purchaser in connection with this Agreement without regard to (i) any requirement in any representation or warranty contained herein that an event or fact be material or have a Material Adverse Effect on the Business, and (ii) any other reference to (including any qualification based upon or upon the absence of) materiality or Material Adverse Effect contained in such representation or warranty;
(b) any breach by Seller shall defend and hold harmless Buyer and or Holdings of, or failure by Seller or Holdings to comply with, any of its Affiliatescovenants or obligations under this Agreement, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and assigns or any breach by Seller of any of the foregoing (collectively, the "Buyer Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity its covenants or at law) and damages whenever arising or incurred obligations under Seller's Ancillary Documents (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: its obligations under this Article X);
(ic) the Indemnified Claims (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and failure to discharge when due any other claim liability or enforcement action obligation of any governmental authority Seller or any third party Holdings (other than the Orlando North VOH PlumeAssumed Liabilities) including, without limitation, any and all Excluded Liabilities;
(d) the solicitation by Seller, Holdings and their financial and other advisors of any remediation activities offers for the acquisition of Buyerthe Business or for all or any part of the operations of DBS and its Affiliates (including, in each case without limitation, offers related to the extent arising out current sales process in which DBS is engaged with the assistance of WP) resulting in claims by any third party for breach of contract, breach of agreement in principle or tortious interference or the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising like with respect to real property that was previously owned a sale of all or leased by the Company but is no longer owned or leased by the Company as any portion of the Closing Date Business (a "Prior Operations Liability"either alone or together with any other operations of DBS and its Affiliates); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital The parties hereto agree that Buyer is unable all recoveries by Purchaser Indemnitees pursuant to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer 10.3 shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited treated as an adjustment to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered Purchase Price under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer LossesArticle III."
Appears in 1 contract
Samples: Asset Purchase Agreement (Danka Business Systems PLC)
Indemnification Obligations of Seller. Subject to the limitations set forth in this Article IX, Seller shall defend and hold harmless Buyer and its Affiliates, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyer Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: (i) the Indemnified Claims (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Losses."
Appears in 1 contract
Samples: Stock Purchase Agreement (Rollins Truck Leasing Corp)
Indemnification Obligations of Seller. (a) Subject to Sections 9.01(b) through 9.01(i) below, Seller shall indemnify and hold Buyer, Holdings, WMG, the directors, officers, employees and consultants of Buyer, of Holdings and of WMG, and all of their respective successors and permitted assigns (collectively, the “Buyer Indemnitees”) harmless from and against any and all liabilities, claims, demands, actions, causes of action, proceedings, assessments, levies, fines, losses, penalties, deficiencies, damages, costs and expenses, including without limitation, reasonable attorneys’, experts’, accountants’, and investigators’ fees and expenses (collectively, the “Buyer Indemnified Losses”) due to or resulting from:
(i) the inaccuracy or breach of any representation or warranty of Seller given in or pursuant to this Agreement (other than Section 6.16 above which is covered in Section 9.01(a)(iv) below);
(ii) the breach or default in the performance by Seller of any of its covenants (including, for the avoidance of doubt and without limitation, the covenants in Sections 8.03 and 8.07 relating to Taxes and the Existing Claims, respectively), obligations or agreements in or pursuant to this Agreement;
(iii) the presence or release of any Hazardous Materials prior to the Effective Time, in, on, under or from (1) the Owned Real Property or Leased Real Property or (2) any property adjacent to or in the vicinity of the Owned Real Property or Leased Real Property to which Hazardous Materials have (x) spread, or may continue to spread after the Effective Time, from the Owned Real Property or Leased Real Property or (y) been released in, on or under as a result of the operations of the Owned Real Property or Leased Property in each case prior to the Effective Time (“Hazardous Material Liability”);
(iv) the inaccuracy or breach of Section 6.16 in so far as such inaccuracy or breach relates to health and safety issues (as opposed to environmental issues), it being understood that Buyer’s sole remedy for Buyer Indemnified Losses due to or resulting from environmental issues is set forth in Section 9.01(a)(iii) above; and
(v) the Existing Claims.
(b) Subject to Section 9.01(d) below, Seller shall not be required to indemnify the Buyer Indemnitees hereunder, and the Buyer Indemnitees shall not be entitled to indemnification from Seller hereunder, unless the aggregate amount of Buyer Indemnified Losses exceeds * (such threshold is referred to hereinafter as the “Basket”). If the Buyer Indemnified Losses exceed the Basket, then the Buyer Indemnitees shall have the right to be indemnified hereunder; provided, however, that such indemnification shall extend only to amounts in excess of * and shall be subject to the Cap. Buyer shall promptly notify Seller of any Buyer Indemnified Loss that is not indemnifiable due to the fact that the aggregate Buyer Indemnified Losses do not, at the time of such notice, exceed the Basket.
(c) Subject to Section 9.01(d) below, the obligation of Seller to indemnify the Buyer Indemnitees for Buyer Indemnified Losses, and the right of the Buyer Indemnitees to be indemnified for Buyer Indemnified Losses, shall terminate at such time as the aggregate amount of Buyer Indemnified Losses paid equals * of the Purchase Price (such threshold is referred to in this Agreement as the “Cap”).
(d) Notwithstanding Sections 9.01(b) and (c) above and any other contrary provision contained in this Agreement:
(i) in the event any Buyer Indemnitee sustains or incurs any Buyer Indemnified Losses due to or resulting from the inaccuracy or breach of any representation or warranty of Seller given in or pursuant to Section 6.02, the first and last sentences of Section 6.05(a), and Sections 6.07 and 6.21, then, for purpose of the limitation set forth in Section 9.01(c), the Cap shall be an amount equal to the Purchase Price; and
(ii) with respect to any Buyer Indemnified Losses due to or resulting from the breach or default in the performance by Seller of any of its covenants, obligations or agreements in or pursuant to Article 8 above or pursuant to Sections 9.01(a)(iii) or 9.01(a)(v), the limitations set forth in Sections 9.01(b) and (h) shall not apply, and the Cap shall be an amount equal to the Purchase Price.
(e) Except as expressly provided in this Article IXSection 9.01, after the Effective Time, Seller shall defend have no obligation or liability to the Buyer Indemnitees and hold harmless the Buyer and its Affiliates, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyer Indemnified Parties") from, Indemnitees shall have no claim or recourse against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) Seller arising out of or relating to: in connection with the transactions contemplated by this Agreement, it being understood and agreed by the Parties that the remedies provided for in this Section 9.01 shall be the sole and exclusive remedies for any such claim by Buyer and the other Buyer Indemnitees for any such matters, whether such claims are framed in contract, tort or otherwise.
(f) Seller’s obligation to indemnify the Buyer Indemnitee(s) shall be reduced by the amount of any insurance proceeds recovered by the applicable Buyer Indemnitee(s) in connection with such Buyer Indemnified Loss; provided, however, that * of the amount of any such Buyer Indemnified Loss shall be applied toward the Basket, but in no event shall Seller be required to pay out any such amounts that have been paid to any Buyer Indemnitee as a result of insurance proceeds (net of all cost and expenses reasonably incurred in connection with such recovery).
(g) The representations and warranties made by Seller in this Agreement or in any certificate or document delivered pursuant hereto shall survive the Closing for the following time periods:
(i) the Indemnified Claims (as hereinafter definedrepresentations and warranties made by Seller in Sections 6.01 and 6.02, and the first and last sentences of Section 6.05(a); , above shall survive the Closing and continue in full force and effect indefinitely;
(ii) the Orlando North VOH Plume (as hereinafter defined); representations and warranties made by Seller in Section 6.07 above, and the indemnity contained in Section 9.01(a)(ii) above shall survive the Closing and continue in full force and effect until 30 days after the expiration of the applicable statute(s) of limitations including waivers and extensions;
(iii) the Environmental Claims (excluding the Orlando North VOH Plume) representations and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, warranties made by Seller in each case to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to Section 6.21 above shall survive the Closing (collectively, "Environmental Liabilities") to the extent not constituting and continue in full force and effect for a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as period of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following five years from the Closing Date; providedand
(iv) all other representations and warranties made by Seller in this Agreement or in any certificate or document delivered pursuant hereto shall survive the Closing for a period of two years from the Closing Date. Upon expiration of the applicable time period set forth above, (A) the Buyer has used its reasonable best efforts Indemnitees shall have no right to collect such receivable, (B) in the event Buyer seeks indemnity indemnification under this Section 9.1(iv)9.01 with respect to inaccuracies or breaches of such expired representations and warranties; provided, Buyer however, that Seller’s obligations to indemnify and hold harmless shall assign such receivable and all proceeds thereof not terminate with respect to Seller and (C) the indemnification any item as to which Buyer is entitled will be limited and/or Holdings shall have, prior to the face expiration of the applicable period, previously made a claim by delivering a notice pursuant to Section 9.03 below.
(h) Notwithstanding anything contained herein to the contrary, de minimis claims for matters amounting to less than * (on a per claim basis) shall not be counted toward the Basket and shall not be subject to indemnification by Seller.
(i) With respect to Seller’s indemnity obligations under Section 9.01(a)(iii) above;
(i) the amount of such indemnity obligation shall be net of any uncollected receivables. For purposes of this Agreementreserve for environmental liabilities set forth on the Closing Date Balance Sheet;
(ii) if Buyer, the "Indemnified Claims" Holdings or WMG fails to comply with Section 8.13 above, so long as Seller is in compliance with Section 8.13, then Seller’s indemnity obligation thereunder shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof be mitigated to the extent based on that Seller’s liability is increased as a result; and
(iii) Seller shall have no indemnity obligation thereunder to the extent that such Hazardous Material Liability results from or would not have arisen but for Buyer, Holdings or WMG undertaking any drilling and sampling of soil or groundwater other than: (a) as required by Environmental, Health and Safety Requirements in effect at the time of such drilling or sampling, or a governmental authority having jurisdiction in respect of such matter in connection with an occurrence Emergency; (b) in connection with the Company's operations sale, transfer or other disposition of all or substantially all of the business of WMG; (c) as required in connection with the investigation of a sudden or accidental release of Hazardous Materials at the Owned Real Property or the Leased Real Property after the Effective Time; or (d) as consented to in advance in writing by Seller (which consent may be withheld in Seller’s sole discretion). With respect to any drilling or sampling of soil or groundwater performed pursuant to clause (a) or (b) of this paragraph, Buyer, Holdings or WMG shall provide Seller 30 days’ prior written notice before undertaking such action, or if such notice is not possible under the Environmental, Health and Safety Requirements, as much notice as is reasonably possible. With respect to any drilling or sampling of soil or groundwater performed pursuant to clause (c) of this paragraph, Buyer shall, or shall cause WMG to, (1) promptly notify Seller of such release, (2) provide, to the Closing Date: workers' compensationextent practicable, vehicle accident or other personal injury or property damage claims normally covered under reasonable prior notice before undertaking such action, and (3) provide Seller with all results of such investigation.
(j) The Parties acknowledge that in connection with the transactions contemplated by this Agreement, WMG has executed and delivered to a general liability insurance policy title company a Seller’s Affidavit and employee compensation and benefits (other than employee compensation and benefits accrued a Non-Imputation Affidavit, both dated as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital)date of this Agreement. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines Parties agree that no Buyer Indemnitee shall have the right to make any indemnification claim against Seller and/or JohnsonDiversey under this Agreement for the breach of any representation or warranty made by WMG in such Seller’s Affidavit and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer LossesNon-Imputation Affidavit."
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Indemnification Obligations of Seller. Subject (a) During the Escrow Period, subject to the limitations set forth in this Article IXVI, Seller shall defend and hold harmless Buyer indemnify Patent Purchaser and its Affiliates, each of their respective directors, officers, directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing Representatives (collectively, the "Buyer “Patent Purchaser Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law”) and damages whenever arising hold each of them harmless against any direct loss, liability, cost, damage or incurred expense (including, without limitation, amounts paid in settlement, costs including reasonable expenses of investigation and reasonable attorneys' ’ fees and expenses, but excluding any consequential, indirect, special, incidental or punitive damages or lost profits) (collectively, “Losses”), suffered by any such Purchaser Indemnified Party in connection with (i) any inaccuracy of any representation or warranty of Seller under this Agreement (without giving effect to any materiality qualifications therein) or (ii) any breach of any covenant or agreement of Seller under this Agreement. The Initial Participants of Patent Purchaser shall be deemed to be Patent Purchaser Indemnified Parties hereunder. For purposes of clause (i) of this Section 6.4(a), the representations and warranties of Seller under this Agreement shall be deemed to have been made as of the Patent Sale Closing Date (unless expressly made as of another date). For the avoidance of doubt, except in the case of fraud, neither Seller nor any of its Affiliates, directors, officers, employees, agents and Representatives shall have any obligation to indemnify Patent Purchaser Indemnified Parties or otherwise have any obligation or liability under this Agreement arising out of or relating to: to the delivery of the certificate referred to in Section 7.2(d).
(ib) During the Escrow Period, the right to obtain indemnification from, and only from, the offset by the Patent Purchaser Indemnified Claims (as hereinafter defined); (ii) Parties of the Orlando North VOH Plume (as hereinafter defined); (iii) Escrow Fund pursuant to the Environmental Claims (excluding indemnification provisions of this Article VI shall be the Orlando North VOH Plume) Patent Purchaser Indemnified Parties’ sole and exclusive remedy for monetary damages. In no event shall Seller have any indemnification liability for Losses in excess of the Escrow Amount. Without limiting the generality of the foregoing or any term of this Agreement to the contrary, nothing contained in this Agreement shall limit the rights of the Patent Purchaser Indemnified Parties to seek or obtain specific performance or any other claim or enforcement action equitable remedy to which such Patent Purchaser Indemnified Party is otherwise entitled.
(c) The Patent Purchaser Indemnified Parties shall not be entitled to receive any portion of the Escrow Fund for any governmental authority or any third party indemnification obligations pursuant to Section 6.4(a) unless and until the aggregate amount of Losses exceeds One Million Five Hundred Thousand Dollars (other than $1,500,000) (the Orlando North VOH Plume) and any remediation activities of Buyer“Threshold Amount”), in each case which case, the Patent Purchaser Indemnified Parties shall be entitled to receive the amount of such Losses in excess of such Threshold Amount up to the extent arising out Escrow Amount.
(d) The obligations of Seller and the rights of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity Patent Purchaser Indemnified Parties under this Section 9.1(iv)6.4 shall terminate upon the termination of the Escrow Period.
(e) Notwithstanding anything contained herein to the contrary, Buyer shall assign such receivable and all proceeds thereof portion of the Escrow Fund at the conclusion of the Escrow Period as in the reasonable judgment of Patent Purchaser may be necessary to satisfy any unresolved or unsatisfied claims for Losses specified in any Claims Notice delivered to Seller and (C) the indemnification prior to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim expiration of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected Escrow Period shall remain in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer LossesEscrow Fund until such claims have been resolved or satisfied."
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Indemnification Obligations of Seller. Subject to the limitations set forth in provisions of this Article IXVIII, from and after the Closing, Seller shall defend indemnify, defend, and hold harmless Buyer and its Affiliates, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyer Indemnified Parties") Parties from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) Losses arising out of:
(a) any breach of any Fundamental Representation;
(b) any breach of any covenant, agreement or relating to: undertaking made by Seller in this Agreement which, by its terms, is to be completed prior to or as of the Closing;
(c) any breach of any covenant, agreement or undertaking made by Seller in this Agreement which, by its terms, requires performance in whole or in part after the Closing;
(d) (i) any Taxes (other than Transfer Taxes, which will be subject to Section 5.6(f)) of the Indemnified Claims Company with respect to any Tax period or portion thereof ending on or before the Closing Date (as hereinafter definedor for the portion of any Straddle Period ending on the Closing Date determined in accordance with Section 5.6(d)); (ii) the Orlando North VOH Plume unpaid Taxes of any Person under Treasury Regulations Section 1.1502-6 (as hereinafter defined)or any similar provision of Law) that are imposed on the Company by reason of having been a member of an affiliated, combined, consolidated, unitary or similar group on or before the Closing Date; and (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action unpaid Taxes of any governmental authority Person for which the Company is liable as a transferee or any third party successor, by contract (other than a contract entered into in the Orlando North VOH Plume) and any remediation activities Ordinary Course the primary purpose of Buyer, in each case which is unrelated to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined belowTaxes), or otherwise, which Taxes relate to an event or transaction occurring before the Closing; provided that, such Taxes described in clauses (ivi) through (iii) above shall not include any Environmental Liability arising with respect to real property Taxes that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (vx) any accounts receivable of the Company were reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in Statement, (y) are attributable to the calculation breach of any covenant of Buyer under Section 5.6, or (z) are attributable to any action taken by or on behalf of the Company on the Closing Date Working Capitalafter the Closing;
(e) any Excluded Asset or Excluded Liability;
(f) any Liability for Post-Closing Environmental Remediation Measures for which Seller is responsible pursuant to Section 5.23(d); or
(g) any breach of the Real Estate Representation with respect to the Commitment Delivery Real Property, in each case limited only to the representation that the Company, Seller or its Affiliate, as applicable, has good and valid fee simple title in and to such property and, for the avoidance of doubt, the indemnification under this clause (g) does not pertain to any encumbrances on title or other Liens, or whether the same are or are not Permitted Liens. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages Losses of the Buyer Indemnified Parties described in this Section 9.1 8.1 as to which the Buyer Indemnified Parties are entitled to indemnification from Seller are hereinafter collectively referred to as "“Buyer Losses”."
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Indemnification Obligations of Seller. Subject to the limitations set forth in terms and conditions of this Article IXXII, following the Closing, Seller shall defend indemnify and hold harmless Buyer and its AffiliatesPurchaser, each of Purchaser’s Affiliates, and their respective successors, assigns, officers, directors, employees, employees and agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyer “Purchaser Indemnified Parties"”) from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever Losses arising or incurred resulting from or based upon:
(includinga) any breach of any representation or warranty of Seller contained in this Agreement or any other Transaction Document;
(b) any breach or violation of, without limitationor failure to perform, amounts paid any covenant or agreement on the part of Seller contained in settlementthis Agreement or any other Transaction Document; or
(c) any Retained Liabilities. provided, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: however, that (i) the Indemnified Claims (as hereinafter defined)Seller shall have no liability under Section 12.2(a) or Section 12.2(b) with respect to breaches of representations or warranties, or of covenants to be performed prior to Closing with respect to any individual case of a Loss that is less than $10,000; (ii) Seller shall have no liability under Section 12.2(a) or Section 12.2(b) with respect to breaches of representations or warranties, or of covenants to be performed prior to Closing unless the Orlando North VOH Plume aggregate of all Losses arising under Section 12.2(a) and Section 12.2(b) with respect to breaches of representations or warranties, or of covenants to be performed prior to Closing for which Seller would, but for this clause (as hereinafter definedii); , be liable exceeds $3,000,000 (in which event Seller shall be liable only for such Losses under Section 12.2(a) and Section 12.2(b) with respect to breaches of representations or warranties, or of covenants to be performed prior to Closing that are in excess of such amount) and (iii) the Environmental Claims (excluding the Orlando North VOH PlumeSeller’s aggregate liability under Section 12.2(a) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH PlumeSection 12.2(b) and any remediation activities of Buyer, in each case to the extent arising out of the generation, discharge, release, treatment, transportation, storage or disposal by the Company of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned breaches representations or leased by the Company but is warranties, or of covenants to be performed prior to Closing shall in no longer owned or leased by the Company as event exceed an amount equal to 20% of the Closing Date Purchase Price (a "Prior Operations Liability"the “Indemnity Cap”); and (v) . Notwithstanding the foregoing, the Indemnity Cap shall not apply with respect to any accounts receivable breach of the Company reflected in Fundamental Representations or Liabilities of Seller under Section 12.2(b) with respect to covenants to be performed at or after the Closing Date Working Capital that Buyer is unable or Section 12.2(c). Notwithstanding anything to collect within 90 days following the Closing Date; provided, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) contrary in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of 12.2 or elsewhere in this Agreement, the "Indemnified Claims" in no event shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and Seller have any claim of the type described below brought against the Company (obligation under this Agreement to indemnify or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer hold harmless any Purchaser Indemnified Parties described for or with respect to (i) any amounts that are owing or payable to Seller or any of its Affiliates by Purchaser or any of its Affiliates under any Non-Transaction Contract or (ii) any Losses that constitute Liabilities of Purchaser or any of its Affiliates under any Non-Transaction Contract, including, in either such case, even if such amounts or Losses constitute Retained Liabilities under this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer LossesAgreement."
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Indemnification Obligations of Seller. Subject to From and after the limitations set forth in this Article IXClosing Date, Seller shall defend defend, indemnify and hold harmless Buyer and Purchaser, its Affiliates, and each of their respective officers, directors, agents, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing shareholders or members (collectively, the "Buyer Indemnified PartiesPurchaser Indemnitees") from), harmless from and against and in respect of any and all claimsDamages which Purchaser Indemnitees may incur or suffer, liabilitiesor with which any of them may be faced arising out of:
(i) the storage, obligationshandling, lossesuse, costsmarketing, expensesadvertising, penaltiespromotion, fines distribution or sale of the Product by Seller and/or its Affiliates, sublicensees, distributors or agents in the Territory, the conduct of the Business by Seller and/or its Affiliates, sublicensees, distributors or agents in the Territory, or Seller's ownership or use of the Purchased Assets, in each case, prior to the Closing Date, excluding all Assumed Liabilities, and judgments on and after the date of a repurchase contemplated by Section 9.02(b)(ii) or 9.02(c);
(at equity ii) the breach by Seller of this Agreement including (A) any material inaccuracy in or at lawmaterial breach of any representation or warranty made by Seller in this Agreement; provided, however, that (1) Seller shall not have any liability under this Section 11.02(b)(ii)(A) unless and damages whenever arising until, and then only to the extent, the aggregate, cumulative amount of such Damages exceeds the Indemnity Deductible Amount, and (2) in no event shall the aggregate, cumulative liability of Seller for Damages under this Section 11.02(b)(ii)(A) exceed the Seller Indemnity Cap Amount; and provided further that Seller shall only have liability under this Section 11.02(b)(ii)(A) to the extent a Purchaser Indemnitee provides written notice to Seller of its claim for indemnification within the applicable period of limitations contemplated in Section 11.01(a), and (B) any material breach by Seller of, or incurred material failure by Seller to comply with, any of its covenants or obligations pursuant to this Agreement;
(including, without limitation, amounts paid in settlement, costs iii) the enforcement by Purchaser Indemnitees of investigation and reasonable attorneys' fees and expensestheir rights under this Section 11.02(b);
(iv) Seller's material violation of any Applicable Law; and
(v) arising out of or relating to: in any way related to the Excluded Liabilities; provided, however, that (ix) the Indemnified Claims (as hereinafter defined); (ii) the Orlando North VOH Plume (as hereinafter defined); (iii) the Environmental Claims (excluding the Orlando North VOH Plume) and any other claim or enforcement action of any governmental authority or any third party (other than the Orlando North VOH Plume) and any remediation activities of Buyer, in each case such case, Seller shall not be liable hereunder to the extent arising out such Damages arise from misconduct or negligence of, or violation of Applicable Law by, Purchaser, its Affiliates, agents, employees or contractors, or from the breach by Purchaser of the generation, discharge, release, treatment, transportation, storage or disposal by the Company provisions of any Hazardous Materials at any time prior to the Closing (collectively, "Environmental Liabilities") to the extent not constituting a Prior Operations Liability (as defined below), (iv) any Environmental Liability arising with respect to real property that was previously owned or leased by the Company but is no longer owned or leased by the Company as of the Closing Date (a "Prior Operations Liability"); and (v) any accounts receivable of the Company reflected in the Closing Date Working Capital that Buyer is unable to collect within 90 days following the Closing Date; providedTransaction Documents, (A) Buyer has used its reasonable best efforts to collect such receivable, (B) in the event Buyer seeks indemnity under this Section 9.1(iv), Buyer shall assign such receivable and all proceeds thereof to Seller and (C) the indemnification to which Buyer is entitled will be limited to the face amount of any uncollected receivables. For purposes of this Agreement, the "Indemnified Claims" shall mean those Litigation Claims marked with an asterisk on Schedule 3.12 and any claim of the type described below brought against the Company (or Buyer as the successor to the Company) after the date hereof to the extent based on an occurrence in connection with the Company's operations prior to the Closing Date: workers' compensation, vehicle accident or other personal injury or property damage claims normally covered under a general liability insurance policy and employee compensation and benefits (other than employee compensation and benefits accrued as a liability on the Final Closing Balance Sheet and reflected in the calculation of the Closing Date Working Capital). The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Buyer Indemnified Parties described in this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Losses***."
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