Indemnification Obligations of the Seller. The Seller shall indemnify, defend and hold harmless the Purchaser and its Affiliates, each of their respective officers, -52- 57 directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "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 or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to: (a) any Excluded Liability; (b) [INTENTIONALLY OMITTED]; (c) any breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by the Seller in this Agreement or in the Seller Ancillary Documents without regard to qualifications with respect to materiality, Seller Material Adverse Effect or similar phrases contained therein; (d) any breach or inaccuracy of any representation or warranty made by the Seller in Section 3.18(m) or in Section 3.18(m) of the Seller Disclosure Letter, without regard to qualifications with respect to knowledge, materiality, Seller Material Adverse Effect or similar phrases contained therein; provided, however, that the obligation of the Seller to indemnify the Purchaser pursuant to this Section 9.1(d) shall be reduced on a dollar for dollar basis to the extent that unpaid software license fees which cause a breach or inaccuracy of Section 3.18(m) or Section 3.18(m) of the Seller Disclosure Letter have actually been paid or are subsequently paid by a third party pursuant to the terms of such Assumed Contract; (e) any breach of any covenant, agreement or undertaking made by the Seller in this Agreement or in the Seller Ancillary Documents; (f) any fraud, willful misconduct or bad faith of the Seller in connection with this Agreement or the Seller Ancillary Documents; (g) any provision of any Environmental Law and arising out of or relating to (i) any act or omission of the Seller, or its employees, agents or representatives or (ii) the ownership, use, control or operation on or prior to the Closing Date of the real property or any plant, facility, site, area or property used in the business of the Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of any Hazardous Materials at or from the real property or any such plant, facility, site, area or property; (h) any liability or obligation relating to the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring prior to the Closing Date; (i) non-compliance by the Parties with any applicable bulk sales legislation; or (j) any inaccuracy, misstatement or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Purchaser Indemnified Parties described in this Section 9.1 as to which the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser Losses." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior to the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Phoenix International LTD Inc), Asset Purchase Agreement (London Bridge Software Holdings PLC)
Indemnification Obligations of the Seller. The From and after the Closing, and except with respect to Taxes, the Seller shall will indemnify, defend and hold harmless the Purchaser Buyer Parent and its Affiliatesthe Buyer Sub, each of their respective officersany parent, -52- 57 directorsSubsidiary, employeesassociate, agents and representatives and each of the heirsAffiliate, executors, successors and assigns shareholder or Representative of any of the foregoing Persons, and their respective representatives, successors and permitted assigns (collectivelyin each case other than the Seller, any Seller Stockholder or any beneficiary of any Seller Stockholder that is a trust, solely in their capacity as such) (all referred to individually as a “Buyer Indemnified Party” and collectively as the "Purchaser “Buyer Indemnified Parties"”) from, from and against and pay on behalf of or reimburse such party in respect of any and of, all claimslosses, liabilities, obligationsdemands, lossesclaims, actions or causes of action, costs, expensesdamages, judgments, debts, settlements, assessments, deficiencies, penalties, fines or expenses, whether or not arising out of any claims by or on behalf of a third party, including interest, penalties, reasonable attorneys’ fees and judgments (at equity or at law) expenses and damages whenever arising or incurred (including, without limitation, all amounts paid in settlementinvestigation, costs of investigation and reasonable attorneys' fees and expensesdefense or settlement (collectively, “Losses”) arising out of that any Buyer Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, or relating toto or by virtue of:
(a) any Excluded Liability;
(b) [INTENTIONALLY OMITTED];
(c) any inaccuracy in or breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by the Seller in this Agreement or in the Seller Ancillary Documents without regard to qualifications with respect to materiality, Seller Material Adverse Effect or similar phrases contained therein;
(d) any breach or inaccuracy of any representation or warranty made by the Seller in Section 3.18(m) or any Seller Stockholders under this Agreement or in Section 3.18(m) of any certificate delivered by the Seller Disclosure Letter, without regard to qualifications with respect to knowledge, materiality, or any Seller Material Adverse Effect or similar phrases contained therein; provided, however, that the obligation of the Seller to indemnify the Purchaser Stockholders pursuant to this Section 9.1(dAgreement;
(b) shall be reduced on a dollar for dollar basis to the extent that unpaid software license fees which cause a any breach or inaccuracy non-fulfillment of Section 3.18(m) any covenant or Section 3.18(m) agreement on the part of the Seller, the Seller Disclosure Letter have actually been paid Representative or are subsequently paid any Seller Stockholders under this Agreement or in any certificate delivered by the Seller, the Seller Representative or any Seller Stockholders pursuant to this Agreement;
(c) any Excluded Liability;
(d) any Claim by a third party pursuant holder of or former holder of the capital stock or other equity interests of the Seller, or any other Person: (i) seeking to assert ownership or rights to ownership of any shares of capital stock or other equity interests of the terms Seller; (ii) based upon any rights of such Assumed Contracta holder of capital stock, equity interests, option or preemptive rights of the Seller; or (iii) based upon any rights under the Organizational Documents of the Seller;
(e) any breach of any covenantthe acts and omissions of, agreement or undertaking made by reliance in accordance with Section 10.1(b) upon, the Seller in this Agreement or in the Seller Ancillary Documents;Representative; and
(f) any fraudfees, willful misconduct expenses or bad faith of other payments incurred or owed by the Seller, the Seller Representative or any Seller Stockholder or any of their respective Affiliates to any agent, broker, investment banker or other firm or Person retained or employed in connection with the transactions contemplated by this Agreement or Agreement. Notwithstanding anything to the Seller Ancillary Documents;
(g) any provision of any Environmental Law and arising out of or relating to contrary contained in this Agreement, (i) the Buyer Indemnified Parties are intended third party beneficiaries under this Agreement and will be entitled to directly enforce any act or omission of the Sellerindemnification rights to which they may be entitled under this Agreement, or its employees, agents or representatives or and (ii) the ownership, use, control Seller has no responsibility or operation on or prior to liability respecting the Closing Date of the real property or any plant, facility, site, area or property used in the business of the Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of any Hazardous Materials at or from the real property or any such plant, facility, site, area or property;
(h) any liability or obligation relating to the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring prior to the Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislation; or
(j) any inaccuracy, misstatement or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Purchaser Indemnified Parties described in this Section 9.1 as to which the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser LossesLenexa Purchase Agreement." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior to the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Avon Products Inc)
Indemnification Obligations of the Seller. The Seller shall (and the -------------------------------------------- Corporation prior to the Second Closing Date) shall, jointly and severally, indemnify, defend and hold harmless the Purchaser and its Affiliatesaffiliates, each of their respective officers, -52- 57 directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Purchaser Indemnified --------------------- Parties") from, against against, and in respect of of, any and all claims, liabilities, ------- obligations, damages, losses, costs, expenses, penalties, fines and judgments (at equity or at law, including statutory and common) and damages whenever arising or incurred (including, without limitation, including amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to:
(a) any Excluded Liability;
(b) [INTENTIONALLY OMITTED];
(c) any breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by the Seller in this Agreement or in the Seller Ancillary Documents without regard to qualifications with respect to materiality, Seller Material Adverse Effect or similar phrases contained therein;
(d) any breach or inaccuracy of any representation or warranty made by the Corporation or the Seller in Section 3.18(m) this Agreement or any documents or agreements executed and delivered by the Corporation or any Seller in Section 3.18(m) of connection with the Seller Disclosure Letter, transactions contemplated by this Agreement (without regard to qualifications with respect any qualification or exception contained in such representation or warranty relating to knowledge, materiality, Seller materiality or Material Adverse Effect or similar phrases contained therein; providedEffect), however, that the obligation whether such representation and warranty is made as of the Seller to indemnify date hereof, the Purchaser pursuant to this Section 9.1(d) shall be reduced on a dollar for dollar basis to Initial Closing Date or the extent that unpaid software license fees which cause a breach or inaccuracy of Section 3.18(m) or Section 3.18(m) of the Seller Disclosure Letter have actually been paid or are subsequently paid by a third party pursuant to the terms of such Assumed ContractSecond Closing Date;
(eb) any breach of any covenant, agreement or undertaking made by the Corporation or the Seller in this Agreement or in any documents or agreements executed and delivered by the Seller Ancillary Documents;
(f) Corporation or any fraud, willful misconduct or bad faith of the Seller in connection with the transactions contemplated by this Agreement or the Seller Ancillary Documents;
(g) any provision of any Environmental Law and arising out of or relating to (i) any act or omission of the Seller, or its employees, agents or representatives or (ii) the ownership, use, control or operation on or prior to the Closing Date of the real property or any plant, facility, site, area or property used in the business of the Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of any Hazardous Materials at or from the real property or any such plant, facility, site, area or property;
(h) any liability or obligation relating to the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring prior to the Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislationAgreement; or
(j) any inaccuracy, misstatement or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, damages, costs, expenses, penalties, fines and damages judgments of the Purchaser Indemnified Parties described in this Section 9.1 l0.0l as to which the Purchaser Indemnified Parties are entitled to ------------- indemnification are hereinafter collectively referred to as the "Purchaser Losses." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior to the Closing Date.". -----------------
Appears in 1 contract
Indemnification Obligations of the Seller. The After the Closing, the Seller shall indemnifyindemnify the Buyer, defend the Company and hold harmless the Purchaser and its their respective Affiliates, each of their respective officers, -52- 57 directors, employees, agents successors and representatives permitted assigns (other than the Seller) (collectively, “Buyer Indemnified Parties”) and save and hold each of them harmless against and pay on behalf of or reimburse the heirsBuyer Indemnified Parties as and when incurred for any loss, executorsliability, successors action, cause of action, cost, damage, diminution in value, Tax or expense, whether or not arising out of third party claims (including interest, penalties, reasonable attorneys’, consultants’ and assigns experts’ fees and expenses and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing foregoing) (collectively, the "Purchaser “Losses”, and each a “Loss”), which any Buyer Indemnified Parties") fromParty may suffer, against and sustain or become subject to, as a result of, in respect of any and all claimsconnection with, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity relating or at law) and damages whenever arising incidental to or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating toby virtue of:
(a) any Excluded Liability;
(b) [INTENTIONALLY OMITTED];
(ci) any breach or inaccuracy of any representation or warranty (of the Seller or the Company under this Agreement, or in any of the certificates or other than with respect to Section 3.18(m)) made instruments or documents furnished by the Seller in this Agreement Company or in the Seller Ancillary Documents without regard pursuant to this Agreement; provided, that, for the sole purpose of determining Losses (and not for determining whether or not any breaches of representations or warranties have occurred) under this Section 9.2, the qualifications with respect as to materiality, Seller materiality and Material Adverse Effect or similar phrases contained thereinin such representations and warranties shall not be given effect;
(dii) any breach non-fulfillment or inaccuracy of any representation or warranty made by the Seller in Section 3.18(m) or in Section 3.18(m) of the Seller Disclosure Letter, without regard to qualifications with respect to knowledge, materiality, Seller Material Adverse Effect or similar phrases contained therein; provided, however, that the obligation of the Seller to indemnify the Purchaser pursuant to this Section 9.1(d) shall be reduced on a dollar for dollar basis to the extent that unpaid software license fees which cause a breach or inaccuracy of Section 3.18(m) or Section 3.18(m) of the Seller Disclosure Letter have actually been paid or are subsequently paid by a third party pursuant to the terms of such Assumed Contract;
(e) any breach of any covenant, agreement or undertaking made other provision by the Seller in under this Agreement or in the Seller Ancillary DocumentsAgreement;
(fiii) any fraud, willful misconduct or bad faith of the Seller in connection with this Agreement or the Seller Ancillary DocumentsPre-Closing Taxes;
(giv) to the extent the following items are not taken into account in the calculation of the Purchase Price: (x) any provision Debt of any Environmental Law BPS Company and arising out of or relating to (iy) any act or omission Liability of the Seller, or its employees, agents or representatives or (ii) the ownership, use, control or operation on or prior to the Closing Date of the real property or any plant, facility, site, area or property used in the business of the Company for Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of any Hazardous Materials at or from the real property or any such plant, facility, site, area or propertyExpenses;
(hv) any liability or obligation relating Liability attributable to any Non-BPS Asset; or
(vi) any Liability attributable to the Class Action, Storms Matter described on Schedule 3.19 to the extent to which the Losses suffered or sustained are the result of the conduct of Seller or any other litigation relating to the Seller, of its Affiliates or its or their officers, directors, employees employees, successors or Affiliates which relates to matters permitted assigns (other than the BPS Companies and their respective officers, directors, employees, successors or events occurring prior to the Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislation; or
(j) any inaccuracy, misstatement or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Purchaser Indemnified Parties described in this Section 9.1 as to which the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser Lossespermitted assigns)." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior to the Closing Date.
Appears in 1 contract
Indemnification Obligations of the Seller. The Seller shall indemnify, defend and hold harmless the Purchaser and its Affiliates, each of their respective officers, -52- 57 directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Purchaser Buyer Indemnified Parties") Parties from, against against, and in respect of of, any and all claims, liabilities, obligations, damages, losses, costs, expenses, penalties, fines and judgments (at equity or at law, including statutory and common) and damages whenever arising or incurred (including, without limitation, including amounts paid in settlement, costs of investigation settlement and reasonable attorneys' ’ fees and expenses) arising out of or relating to:
(a) any Excluded Liability;
(b) [INTENTIONALLY OMITTED];
(c) any breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by the Seller in this Agreement or in the Seller Ancillary Documents without regard to qualifications with respect to materiality, Seller Material Adverse Effect or similar phrases contained therein;
(d) any breach or inaccuracy of any representation or warranty made by the Seller in Section 3.18(m) or in Section 3.18(m) this Agreement as of the Seller Disclosure Letterdate hereof or as of the Closing as if made on and as of the Closing (except if such representations and warranties are made as of an earlier date, in which case, as of such earlier date) (for purposes of determining a breach or inaccuracy and/or the amount of Buyer Losses resulting from such breach pursuant to this Section 8.1(a), such representations and warranties shall be read without regard reference to qualifications with respect to knowledge, materiality, Seller Material Adverse Effect or similar phrases contained therein; provided, however, that the obligation of the Seller to indemnify the Purchaser pursuant to this Section 9.1(d) shall be reduced on a dollar for dollar basis to the extent that unpaid software license fees which cause a breach or inaccuracy of Section 3.18(m) or Section 3.18(m) of the Seller Disclosure Letter have actually been paid or are subsequently paid by a third party pursuant to the terms of such Assumed Contractmonetary and non-monetary qualifications);
(eb) any breach of any covenant, agreement or undertaking made by the Seller in this Agreement or in the Seller Ancillary DocumentsAgreement;
(fi) any fraudclaims made in or losses resulting from pending or future suits, willful misconduct actions, investigations or bad faith other legal, governmental or administrative proceedings (including, for the avoidance of the Seller in connection with this Agreement or the Seller Ancillary Documents;
(g) any provision of any Environmental Law and doubt, claims arising out of or relating to data security or privacy breaches, GDPR violations or violations of similar U.S. or state Laws), or (ii) claims or losses based on violations of Law as in effect on or prior to the Closing, breach of contract, employment practices, health and safety matters or the operation of the Business, in each case solely to the extent arising out of or relating to the operations of the Company, any of its Subsidiaries or the Business prior to the Closing;
(d) (i) any act Taxes of or omission imposed on the Company, any of its Subsidiaries or otherwise with respect to the Business or the assets of the Company or any of its Subsidiaries with respect to any taxable period (or portion thereof) ending on or before the Closing Date, except to the extent such Taxes were reflected on the Final Closing Statement, (ii) any and all Taxes of the Seller, Holdco or any Affiliates of the Seller for any taxable period, (iii) any Taxes of any Person (other than the Company or any of its employeesSubsidiaries) for any taxable period imposed on the Company or any of its Subsidiaries under Treasury Regulations Section 1.1502-6 (or any similar provision of state, agents local or representatives foreign Law) or as a transferee or successor, by Contract, or otherwise, except to the extent such Taxes were reflected on the Final Closing Statement; and (iiiv) any Taxes for which Seller is responsible pursuant to Section 5.12(a), Section 5.12(d) or Section 5.12(e);
(e) any actual fraud committed by the Seller in this Agreement;
(f) the ownership, use, control Indebtedness or operation Transaction Expenses to the extent not paid on or prior to the Closing Date of or reflected as a current liability on the real property or any plant, facility, site, area or property used in the business of the Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of any Hazardous Materials at or from the real property or any such plant, facility, site, area or property;
(h) any liability or obligation relating to the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring prior to the Final Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislationStatement; or
(jg) any inaccuracy, misstatement or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchasermatter set forth on Schedule 8.1(g). The claims, liabilities, obligations, losses, damages, costs, expenses, penalties, fines and damages judgments of the Purchaser Buyer Indemnified Parties described in this Section 9.1 8.1 as to which the Purchaser Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser “Buyer Losses." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior to the Closing Date.”
Appears in 1 contract
Samples: Equity Purchase Agreement (Sequential Brands Group, Inc.)
Indemnification Obligations of the Seller. The Seller shall (and --------------------------------------------- CTSI prior to the Closing) shall, jointly and severally, indemnify, defend and hold harmless the Purchaser and its Affiliatesaffiliates, each of their respective officers, -52- 57 directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Purchaser Indemnified Parties") from, against ------------------------------- against, and in respect of of, any and all ail claims, liabilities, obligations, damages, losses, costs, expenses, penalties, fines and judgments (at equity or at law, including statutory and common) and damages whenever arising or incurred (including, without limitation, including amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) arising out of or relating to:
(a) any Excluded Liabilityliability or obligation of the Seller of any nature whatsoever;
(b) [INTENTIONALLY OMITTED]any obligation of CTSI under a contract or commitment to be performed prior to the Closing Date or any breach by CTSI (prior to Closing Date) of a contract or commitment;
(c) any breach events or inaccuracy of any representation circumstances occurring or warranty (other than existing with respect to Section 3.18(m)) made by the Seller in this Agreement ownership, operation and maintenance of CTSI, the CTSI Business and their assets on or in prior to the Seller Ancillary Documents without regard to qualifications with respect to materialityClosing Date, Seller Material Adverse Effect or similar phrases contained thereinexcept for liabilities of a type set forth on the Interim Balance Sheet;
(d) any breach or inaccuracy of any representation or warranty made by CTSI or the Seller in Section 3.18(m) this Agreement or any documents or agreements executed and delivered by CTSI or Seller in Section 3.18(m) connection with the transactions contemplated by this Agreement whether such representation and warranty is made as of the Seller Disclosure Letter, without regard to qualifications with respect to knowledge, materiality, Seller Material Adverse Effect date hereof or similar phrases contained therein; provided, however, that the obligation as of the Seller to indemnify the Purchaser pursuant to this Section 9.1(d) shall be reduced on a dollar for dollar basis to the extent that unpaid software license fees which cause a breach or inaccuracy of Section 3.18(m) or Section 3.18(m) of the Seller Disclosure Letter have actually been paid or are subsequently paid by a third party pursuant to the terms of such Assumed ContractClosing Date;
(e) any breach of any covenant, agreement or undertaking made by CTSI or the Seller in this Agreement or in any documents or agreements executed and delivered by CTSI or Seller in connection with the Seller Ancillary Documents;transactions contemplated by this Agreement; or
(f) any fraud, willful misconduct or bad faith of the Seller in connection with this Agreement or the Seller Ancillary Documents;
(gA) any provision of any Environmental Law and arising out of of, or relating to to, (i) any act or omission of the Seller, CTSI or its employees, agents or representatives on or prior to the Closing Date or (ii) the ownership, use, control or operation on or prior to the Closing Date of the any real property or any property, plant, facility, site, area or property used in the business of the Seller CTSI Business (whether currently or previously owned or leased by the SellerCTSI), including, without limitation, including arising from any release Release of any Hazardous Materials Material or off-site shipment of any Hazardous Materials Material at or from the such real property or any such property, plant, facility, site, area or property;
property or (hB) any liability or obligation relating to the Class Action, mold or any other litigation relating environmental matter or condition, to the Sellerextent caused by CTSI, its officers, directors, employees arising on or Affiliates which relates to matters or events occurring prior to the Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislation; or
(j) any inaccuracy, misstatement or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, damages, costs, expenses, penalties, fines and damages judgments of the Purchaser Indemnified Parties described in this Section 9.1 10,01 as to which the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser Losses." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior to the Closing Date.". -----------------
Appears in 1 contract
Indemnification Obligations of the Seller. The Upon the terms and subject to the conditions of this Article X, the Seller shall agrees to indemnify, defend and hold harmless the Purchaser Buyer and its Affiliates, each of their respective managers, members, officers, -52- 57 directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Purchaser Indemnified PartiesBuyer Group") fromat any time after consummation of the Closing, from and against and in respect all demands, claims, actions or causes of any and all claimsaction, assessments, losses, damages, liabilities, obligations, losses, costs, costs and expenses, penaltiesincluding, fines without limitation, interest, penalties and judgments reasonable attorneys', consultants, engineers and environmental professionals' fees and expenses (at equity or at law) and damages whenever arising collectively, "Damages"), resulting to, imposed upon or incurred by the Buyer Group, or any one of them, directly or indirectly, by reason of or resulting from: (a) liabilities, obligations or claims (whether absolute, accrued, contingent or otherwise, but excluding (1) the Assumed Liabilities and (2) any Environmental Claims (including, without limitation, amounts paid any liabilities described in settlementthe last sentence of Section 1.08) written notice of which Environmental Claims are not provided to the Seller by the Buyer on or before the fifth anniversary of the Closing Date) of or against the Seller, costs the Business or the Acquired Assets relating to the conduct of investigation and reasonable attorneys' fees and expenses) the Business or the Acquired Assets on or before the Closing Date, existing as of the Closing Date or arising out of facts, conditions or relating to:
(a) any Excluded Liability;
circumstances occurring at or prior thereto, whether or not such liabilities, obligations or claims are disclosed in a Schedule to this Agreement; (b) [INTENTIONALLY OMITTED];
(c) any a breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by of the Seller contained in or made pursuant to this Agreement or in the Seller Ancillary Documents without regard Related Instruments or any facts or circumstances constituting such a breach and written notice of which is provided to qualifications with respect to materiality, the Seller Material Adverse Effect or similar phrases contained therein;
(d) any breach or inaccuracy of any representation or warranty made by the Seller Buyer within the time limits set forth in Section 3.18(m) or in Section 3.18(m) of the Seller Disclosure Letter, without regard to qualifications with respect to knowledge, materiality, Seller Material Adverse Effect or similar phrases contained therein10.02; provided, however, that for purposes of this Article X any such breach (but only as it relates to a breach of the obligation representations and warranties contained in Sections 3.02(a), 3.04, 3.06(d) and 3.11 (excluding the defined term "Material Contracts") shall be determined without regard to any qualification for "immaterial" or "material" contained in the text of such representations and warranties; (c) a breach of any covenant or agreement of the Seller to indemnify the Purchaser contained in or made pursuant to this Section 9.1(d) shall be reduced on Agreement or the Seller Related Instruments or any facts or circumstances constituting such a dollar for dollar basis breach, written notice of which is provided to the extent that unpaid software license fees which cause a breach Seller by the Buyer on or inaccuracy of Section 3.18(m) or Section 3.18(m) before the expiration of the Seller Disclosure Letter have actually been paid survival period for such covenant or are subsequently paid by a third party pursuant to the terms of such Assumed Contract;
agreement as provided in Section 10.02(b); (ed) any breach of any covenant, agreement or undertaking intentional misrepresentation made by the Seller in this Agreement or in the Seller Ancillary Documents;
(f) any fraud, willful misconduct or bad faith of the Seller in connection with the transactions contemplated by this Agreement or the Seller Ancillary Documents;
Related Instruments; (ge) any provision of Environmental Claim asserted against the Buyer for which the Buyer may become liable, the facts or circumstances giving rise to which occurred on or before the Closing Date, (including without limitation any Environmental Law and arising out of or Claim relating to (i) any act or omission CERCLA investigation of the Sellerplant facility located in Valley Park, Missouri identified in ASR's Form 10-K) and written notice of which Claim is provided to the Seller by the Buyer on or its employees, agents or representatives or before the fifth anniversary of the Closing Date; (iif) the ownershippresence of Materials of Environmental Concern in, useon, control under, at or operation emanating from, any Acquired Asset or Leased Property or in connection with the Business on or prior to the Closing Date and written notice of which Claim is provided to the Seller by the Buyer on or before the fifth anniversary of the real property Closing Date; (g) any violation of Requirements of Environmental Law by the Seller or any plantother party, facilityat the Leased Property, site, area the Owned Property or property used any Business Facility the facts or circumstances giving rise to which occurred in whole or in part prior to the business Closing Date and written notice of which Claim is provided to the Seller by the Buyer on or before the fifth anniversary of the Closing Date; (h) any liability of the Seller for Taxes arising prior to the Closing Date or related to periods prior to the Closing Date; (whether currently i) claims for COBRA coverage made by or previously owned on behalf of any current or leased former employees of the Seller and their qualified beneficiaries other than claims for COBRA coverage made by or on behalf of any Business Employees hired by the Buyer and subsequently terminated by the Buyer (collectively, "Claims"); and (j) pre-Closing liabilities, obligations, or claims of or against the Seller or any of Seller's Affiliates, including but not limited to Megas Beauty Care, Inc., relating to (1) that certain Tax Credit Agreement, Tax Credit Authority No. ECDD 97-65, dated August 11, 1998, by and between the State of Ohio, Tax Credit Authority and Megas Beauty Care, Inc., and (2) that certain Enterprise Zone Contract, dated as of August 1, 1977, by and between the City of Cleveland and Megas Beauty Care, Inc. If (i) the Buyer continues the Seller's pre-Closing course of conduct for a facility process of the Business and (ii) the Seller is not notified of a Claim arising out of or in connection with such course of conduct on or before the first anniversary of the Closing Date, then the indemnification by the Seller pursuant to Sections 10.03(e), (f) or (g) hereof shall be prorated based on the time period during which the process failed to comply with Environmental Laws, with the time period of noncompliance on or before the Closing Date (regardless of facility ownership) being allocated to the Seller and the time period of noncompliance after the Closing Date (regardless of facility ownership) being allocated to the Buyer. The indemnification set forth in Sections 10.03 (f) and (g) shall include, without limitation, any and all costs incurred by any member of the Buyer Group owing to any investigation of the Leased Property or Business or any remediation, response, cleanup, removal or restoration required to comply with any requirements of Environmental Law, including, without limitation, arising from in order to obtain a regulatory closure and the costs associated with correcting any release matter that constitutes a breach of Section 3.16 and written notice of which Claim is provided to the Seller by the Buyer on or before the fifth anniversary of the Closing Date, and the costs of repairing or restoring the Acquired Assets, the Leased Property or the Business after the performance of any Hazardous Materials such corrective action or off-site shipment closure. This indemnification provision is expressly intended to include, and does include, any Claims or Environmental Claims arising as a result of any Hazardous Materials at strict liability (including, without limitation, strict liability arising under Environmental Laws) imposed or from threatened to be imposed on any member of the real property Buyer Group in connection with any of the indemnified events described in this Section. The right of indemnification hereunder shall not be affected, diminished or reduced as a result of any such plant, facility, site, area investigations made by or property;
(h) any liability or obligation relating to on behalf of the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring Buyer prior to the Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislation; or
(j) any inaccuracy, misstatement or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof Date and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines Buyer may rely upon all representations and damages of the Purchaser Indemnified Parties described in this Section 9.1 as to which the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser Losses." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid warranties made by the Seller prior hereunder, notwithstanding any such investigations. The Parties expressly acknowledge and agree that, although the Buyer may pursue multiple theories of recovery under this Section, the Buyer shall not be entitled to recover more than one hundred percent (100%) of its Damages arising out of the Closing Datesame set of facts or circumstances.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Safety Razor Co)
Indemnification Obligations of the Seller. The (1) Subject to the other provisions of this Article 7, the Seller shall indemnify, defend indemnify and hold harmless the Purchaser and its AffiliatesAffiliates and, each of their respective officersto the extent named in any Third Party Action, -52- 57 directors, employees, agents and representatives and each of the heirs, executors, successors and assigns of any of the foregoing Purchaser’s or its Affiliates’ employees (other than Transferring Employees themselves with respect to their actions or inactions on or prior to their Employment Transfer Date), officers or directors (collectively, the "“Purchaser Indemnified Parties"Indemnitees”) fromfrom and against any Losses that any Purchaser Indemnitee may suffer, against and in respect of any and all claimssustain or become subject to, 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 toas a result of:
(a) any Excluded Liability;
(b) [INTENTIONALLY OMITTED];
(c) any the breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by the Seller in this Agreement or in the Seller Ancillary Documents without regard to qualifications with respect to materiality, Seller Material Adverse Effect or similar phrases contained therein;
(d) any breach or inaccuracy of its Affiliates of any representation or warranty made by the Seller or any of its Affiliates in Section 3.18(mthis Agreement, each Local Sale Agreement, the Shared Services Agreement, the Brazil Asset Purchase Agreement and the Nortel Proprietary Software License Agreement as applicable, or any certificate delivered at a Closing pursuant to any such agreement;
(b) the breach prior to or concurrent with an applicable Closing by the Seller or any of its Affiliates of any covenant or agreement made by the Seller or any of its Affiliates in Section 3.18(m) this Agreement, any of the Local Sale Agreements, the Shared Services Agreement, the Brazil Asset Purchase Agreement, the Nortel Proprietary Software License Agreement or any certificate delivered at such Closing pursuant to any such agreement that, in any such case, by its terms contemplates compliance or performance at or prior to such relevant Closing;
(c) any obligation or liability of Seller Disclosure Letter, without regard or a Designated Seller to qualifications with respect Third Parties which arises out of or is related to knowledge, materiality, Seller Material Adverse Effect the Assets or similar phrases contained therein; provided, however, that the obligation conduct of any part of the Operations by the Seller, any Designated Seller or any of Seller’s Affiliates, prior to indemnify the relevant Effective Time except to the extent such liability or obligation is an Assumed Liability or otherwise assumed by the Purchaser or any Designated Purchaser pursuant to this Section 9.1(dAgreement, the Local Sale Agreements, the Shared Services Agreement, the Brazil Asset Purchase Agreement or the Nortel Proprietary Software License Agreement;
(d) shall be reduced on the breach after a dollar for dollar basis to relevant Closing by the extent that unpaid software license fees which cause a breach Seller or inaccuracy any of Section 3.18(m) its Affiliates of any covenant or Section 3.18(m) agreement made by the Seller or any of its Affiliates in this Agreement, any of the Seller Disclosure Letter have actually been paid Local Sale Agreements, the Shared Services Agreement, the Brazil Asset Purchase Agreement or are subsequently paid by a third party pursuant to the terms of such Assumed Contract;Nortel Proprietary Software License Agreement; and
(e) or any breach of certificate delivered at such Closing pursuant to any covenantsuch agreement that, agreement in any such case, by its terms contemplates compliance or undertaking made by the Seller in this Agreement or in the Seller Ancillary Documents;performance after such relevant Closing.
(f2) any fraud, willful misconduct or bad faith The Seller and the Designated Sellers shall discharge all of their respective obligations in respect of the Seller Transferring Employees for their own account prior to the applicable Effective Time, and shall indemnify the Purchaser Indemnitees and keep the Purchaser Indemnitees indemnified against all Losses that the Purchaser or Designated Purchaser, as the case may be, suffer in connection with this Agreement or the Seller Ancillary Documents;
(g) any provision of any Environmental Law and arising out of or relating to (i) any act or omission of employment by the Seller, or its employeesthe Designated Seller, agents or representatives or (ii) as the ownershipcase may be, use, control or operation on or prior to the Closing Date of the real property or any plant, facility, site, area or property used in the business of the Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of Transferring Employees arising before the applicable Effective Time, including any Hazardous Materials at or from the real property or any such plantact, facility, site, area or property;
(h) any liability or obligation relating to the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring prior to the Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislation; or
(j) any inaccuracy, misstatement fault or omission in Section 3.11 of the Seller Disclosure Letter delivered as of the date hereof and the Closing Date with respect to such inaccuracies, misstatements or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Purchaser Indemnified Parties described in this Section 9.1 as to which the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser Losses." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior or the Designated Sellers, as the case may be, in relation to a failure to discharge such obligations in respect of the Closing Transferring Employees arising before the applicable Effective Date.
Appears in 1 contract
Indemnification Obligations of the Seller. (a) The Seller shall hereby agrees to indemnify, defend and hold harmless the Purchaser Buyer and its Affiliates, Affiliates and each of their respective officers, -52- 57 directors, employees, agents and representatives and each of (the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Purchaser “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 of any kind or nature whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenseshereinafter "Buyer Losses") arising out of or relating to:
: (ai) any Excluded Liability;
; (b) [INTENTIONALLY OMITTED];
(c) any breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by the Seller in this Agreement or in the Seller Ancillary Documents without regard to qualifications with respect to materiality, Seller Material Adverse Effect or similar phrases contained therein;
(dii) any breach or inaccuracy of any representation or warranty made by the Seller Sellers in Section 3.18(m) or in Section 3.18(m) of the Seller Disclosure Letter, without regard to qualifications with respect to knowledge, materiality, Seller Material Adverse Effect or similar phrases contained thereinthis Agreement; provided, however, that the obligation of the Seller to indemnify the Purchaser pursuant to this Section 9.1(d) shall be reduced on a dollar for dollar basis to the extent that unpaid software license fees which cause a breach or inaccuracy of Section 3.18(m) or Section 3.18(m) of the Seller Disclosure Letter have actually been paid or are subsequently paid by a third party pursuant to the terms of such Assumed Contract;
and (eiii) any breach of any covenant, agreement or undertaking made by the Seller Sellers in this Agreement or Agreement. The Buyer shall give the Seller prompt written notice of any third party claim which may give rise to any indemnity obligation under this Section, together with the estimated amount of such claim, and the Seller shall have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Buyer within sixty (60) days of receipt of the Buyer’s written notice. Failure to give prompt notice shall not affect the indemnification obligations hereunder in the absence of actual prejudice. If the Buyer desires to participate in any such defense assumed by the Seller, it may do so at its sole cost and expense. If the Seller Ancillary Documents;
(f) declines to assume any fraudsuch defense, willful misconduct or bad faith it shall be liable for all reasonable costs and expenses of defending such claim incurred by the Buyer, including reasonable fees and disbursements of counsel in the event it is ultimately determined that Seller is liable for such claim pursuant to the terms of this Agreement. No party shall, without the prior written consent of the Seller other parties, which shall not be unreasonably withheld, settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in connection with this Agreement the imposition of a consent order, injunction or decree which would restrict the Seller Ancillary Documents;
(g) future activity or conduct of the other parties or any provision Subsidiary or Affiliate thereof or if such settlement or compromise does not include an unconditional release of the other parties for any Environmental Law and liability arising out of such claim or relating demand or any related claim or demand.
(b) The foregoing obligation to (i) any act or omission indemnify the Buyer Indemnified Parties shall be subject to each of the Seller, or its employees, agents or representatives or (ii) the ownership, use, control or operation on or prior to the Closing Date of the real property or any plant, facility, site, area or property used in the business of the Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of any Hazardous Materials at or from the real property or any such plant, facility, site, area or property;
(h) any liability or obligation relating to the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring prior to the Closing Date;following limitations:
(i) non-compliance by The Seller’s indemnification obligations for any breach of its representations and warranties shall survive only for a period of one year after the Parties with any applicable bulk sales legislationClosing, and thereafter all such representations and warranties of the Sellers under this Agreement shall be extinguished; or
provided, that, the representations and warranties in Sections 4.1(a), (b), (d), (j) any inaccuracy(but only the first sentence), misstatement or omission in Section 3.11 (k) and (s) shall survive the Closing for a period ending 30 days after the termination of the Seller Disclosure Letter delivered as applicable statute of limitations. No claim for the recovery of such Buyer Losses may be asserted by Buyer after the termination of the date hereof applicable period described above; provided, however, that claims first asserted in writing with specificity within such period shall not thereafter be barred;
(ii) No reimbursement for Buyer Losses asserted against the Seller under Section 6.1(a)(ii) above shall be required unless and until the Closing Date cumulative aggregate amount of such Buyer Losses equals or exceeds $250,000 (the "Threshold") and then only to the extent that the cumulative aggregate amount of Buyer Losses, as finally determined, exceeds said Threshold; provided that in calculating such Threshold any Buyer Losses which individually total less than $10,000 each ("De Minimis Losses") shall be excluded in their entirety and Seller in any event shall have no liability hereunder to the Buyer Indemnified Parties for any such De Minimis Losses; and
(iii) The Seller’s indemnification obligations shall be capped at, and shall not exceed, $750,000 (the “Cap Amount”); provided, that claims with respect to such inaccuracies, misstatements an Excluded Liability or omissions about which the Seller knew based on fraud or should reasonably have known after due inquiry at the time such statements were delivered intentional misconduct shall not be subject to the Purchaser. Cap Amount.
(c) The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Purchaser Indemnified Parties described indemnities provided in this Section 9.1 as to which 6.1 shall survive the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as Closing. The indemnity provided in this Section 6.1 shall be the "Purchaser Lossessole and exclusive remedy of the indemnified party against the indemnifying parties at law or equity for any matter covered by paragraphs (a) (other than (a)(i)) and (b)."
(d) Notwithstanding anything contained herein to the contrarycontrary contained in this Agreement, Purchaser Losses shall not include any liabilities with respect to software license fees except to the extent such fees were paid by arising from fraud, bad faith or intentional misrepresentation, the Seller prior shall not be liable to the Closing DateBuyer Indemnified Parties for any indirect, special, indirect, incidental, consequential (including loss of revenue or profit) or punitive damages arising out of this Agreement or any of the Ancillary Documents.
Appears in 1 contract
Samples: Purchase Agreement (Emcore Corp)
Indemnification Obligations of the Seller. The Subject to the limitations set forth in Section 7.2(c) hereof, the Seller shall indemnifyshall, defend and hold harmless indemnify the Purchaser and Purchaser, its Affiliatesmembers, each of their respective directors, officers, -52- 57 directors, employees, and agents (collectively hereinafter referred to as the “Purchaser Indemnified Parties”), and representatives save and each hold the Purchaser Indemnified Parties harmless against and pay on behalf of the heirsor reimburse such Purchaser Indemnified Parties as and when incurred for any loss, executorsLiability, successors Action, cause of action, cost, damage or expense, Tax or diminution in value (including interest, penalties, reasonable attorneys’, consultants’ and assigns experts’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing or in asserting, preserving or enforcing their rights hereunder) (collectively, the "“Losses”), which any Purchaser Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments Party may suffer as a result of: (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:
(a) any Excluded Liability;
(b) [INTENTIONALLY OMITTED];
(ci) any breach or inaccuracy of any representation or warranty (other than with respect to Section 3.18(m)) made by the Seller in this Agreement or in the Seller Ancillary Documents without regard to qualifications with respect to materiality, Seller Material Adverse Effect or similar phrases contained therein;
(d) any breach or inaccuracy of any representation or warranty made by Seller or the Seller in Section 3.18(m) or in Section 3.18(m) of the Seller Disclosure Letter, without regard to qualifications with respect to knowledge, materiality, Seller Material Adverse Effect or similar phrases contained therein; provided, however, that the obligation of the Seller to indemnify the Purchaser pursuant to this Section 9.1(d) shall be reduced on a dollar for dollar basis to the extent that unpaid software license fees which cause a breach or inaccuracy of Section 3.18(m) or Section 3.18(m) of the Seller Disclosure Letter have actually been paid or are subsequently paid by a third party pursuant to the terms of such Assumed Contract;
(e) any breach of any covenant, agreement or undertaking made by the Seller Shareholders in this Agreement or in the Seller Ancillary Documents;
any other Transaction Document; (fii) any fraud, willful misconduct breach by Seller or bad faith the Shareholders of any covenant or obligation of Seller or the Shareholders under this Agreement; (iii) any Excluded Liability or Excluded Asset; (iv) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with Seller or the Shareholders (or any Person acting on their behalf) in connection with this Agreement the transactions contemplated herein; and (v) any claim or Action involving Seller that is pending as of the Closing Date, or arises after Closing with respect to matters that occurred prior to Closing with regard to the Business or the Seller Ancillary Documents;
(g) Purchased Assets or any provision of Excluded Assets. Notwithstanding the foregoing, the Deductible and Indemnification Cap shall not apply to any Environmental Law and claim or Action relating to or arising out of or relating to (i) any act or omission of the Seller, or its employees, agents or representatives or (ii) the ownership, use, control or operation on or prior to the Closing Date of the real property or any plant, facility, site, area or property used in the business of the Seller (whether currently or previously owned or leased by the Seller), including, without limitation, arising from any release of any Hazardous Materials or off-site shipment of any Hazardous Materials at or from the real property or any such plant, facility, site, area or property;
(h) any liability or obligation relating to the Class Action, or any other litigation relating to the Seller, its officers, directors, employees or Affiliates which relates to matters or events occurring prior to the Closing Date;
(i) non-compliance by the Parties with any applicable bulk sales legislation; or
(j) any inaccuracy, misstatement or omission DNR matter identified in Section 3.11 of the Seller Disclosure Letter delivered as of the date 3.6(a) hereof and the Closing Date with respect to such inaccuracies, misstatements Seller shall remain solely liable for any and all fines or omissions about which the Seller knew or should reasonably have known after due inquiry at the time such statements were delivered to the Purchaser. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Purchaser Indemnified Parties described in this Section 9.1 as to which the Purchaser Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as the "Purchaser Lossesother monetary obligations resulting from said DNR matter." Notwithstanding anything contained herein to the contrary, Purchaser Losses shall not include any liabilities with respect to software license fees to the extent such fees were paid by the Seller prior to the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement
