Common use of Indemnification Survival of Representations and Warranties Clause in Contracts

Indemnification Survival of Representations and Warranties. (a) Subject to the terms and conditions of this Section 7.9 and 7.10 and other than in respect of Environmental Damages for which indemnification shall be had, if at all, exclusively pursuant to Section 7.14, the Selling Shareholders hereby agree to indemnify and save harmless Purchaser and its officers, directors, shareholders, employees and Affiliates from, against, for and in respect of any and all assessments, penalties, losses, damages, liabilities, costs and expense (including court costs, amounts paid in settlement, judgments, reasonable attorneys' fees or other expenses for investigating and defending), suit, action, claim, liability, obligation, or any Taxes described in Section 7.10(a) (collectively, "DAMAGES") suffered, sustained, incurred or required to be paid by Delta, the Purchaser, or any of their respective officers, directors, employees or Affiliates as a direct result of the breach of any representation, warranty, covenant or agreement of the Selling Shareholders or the Company contained in or made pursuant to this Agreement; PROVIDED, HOWEVER, that there shall be no liability under this Section 7.9(a) or Section 7.10(a) unless and until the aggregate of all Damages exceed seventy five thousand dollars ($75,000.00) and then recovery shall be had for each previously or subsequently incurred Damage. (b) Subject to the terms and conditions of this Section 7.9, Delta and Purchaser hereby agree to indemnify and save harmless the Selling Shareholders from, against, for and in respect of any and all Damages suffered, sustained, incurred or required to be paid by any Selling Shareholder as a direct result of the breach of any representation, warranty, covenant or agreement of Purchaser or Delta contained in or made pursuant to this Agreement, PROVIDED that there shall be no liability of Delta or the Purchaser under this Agreement in excess of $2,250,000, other than for payment of the Purchase Price. (c) Any party seeking indemnification hereunder ("INDEMNIFIED PARTY") agrees to give prompt written notice to any indemnifying party (the "INDEMNIFYING PARTY") of any claim by a third party that might reasonably be expected to give rise to a claim based on the indemnity agreements contained in Section 7.9(a) or Section 7.9(b) hereof, stating the nature and basis of said claim and the amount thereof, to the extent known, PROVIDED, HOWEVER, that the failure of any Indemnified Party to give timely notice shall not affect its right to indemnification hereunder except to the extent that the Indemnifying Party demonstrates actual damage or prejudice caused by such failure. (d) In the event the Indemnified Party shall notify the Indemnifying Party of any third-party claim pursuant to subsection (c) hereof, the Indemnifying Party shall defend such claim (including all actions, suits or proceedings and all proceedings on appeal or for review that counsel deem appropriate) with counsel reasonably satisfactory to the Indemnified Party by written notice to the Indemnified Party within thirty (30) days after receipt of such notice. The party defending such claim shall make available to the other party and its attorneys and accountants all books and records relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit or proceeding. The Indemnified Party shall not compromise such claim without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld). (e) In the event that an Indemnified Party shall seek indemnification hereunder with respect to any claims (other than by third parties), the Indemnified Party shall give the Indemnifying Party prompt written notice of such claim, stating the nature and basis of said claim and the amount thereof with specificity, to the extent known. Within thirty (30) days after receipt of such notice, the Indemnifying Party shall either pay the amount of such claim or set forth in writing any dispute with respect to such claim. If such party shall dispute such claim, no amounts shall be payable with respect to such claim until such dispute shall be resolved. (f) Except for fraud or breaches of the representations and warranties contained in Sections 4.3 (Capitalization); 4.4 and 5.1 (Authority Relative to this Agreement of the Company and Selling Shareholders, respectively); 4.12 (Taxes and Tax Payments) and 5.2 (Shares of the Company), for which liability shall neither terminate nor be limited, in no event shall the Company and the Selling Shareholders be liable for aggregate Damages exceeding the lesser of $5,500,000 and any lesser amount then held in the Indemnity Escrow. No Indemnified Party shall have a right to seek indemnification for Damages pursuant to this Section 7.9 or 7.10 at any time after the third anniversary of the date hereof, provided that any claims for indemnification made pursuant to and in accordance with this Section 7.9 or 7.10 that are unresolved at such date shall continue until resolved. (g) The parties hereto acknowledge and agree that the indemnification provided for in this Section 7.9 and in Section 7.10, subject to the limitations set forth herein, shall be the sole and exclusive remedy of the parties with respect to any matter arising from or related to this Agreement (other than for claims relating to fraud). Notwithstanding the foregoing, nothing in this Agreement shall limit the ability of a party to seek specific performance or other equitable relief in connection with this Agreement. (h) Other than for any representations and warranties relating to the environmental condition of the Owned Real Property or the Leased Real Property, Regulated Substances, Environmental Permits, compliance with any applicable Environmental Laws, or any liabilities or any impact upon any of the Company's financial statements or books and records related to or arising in connection with any of the foregoing, including without limitation those made in Section 4.16 (all of which shall terminate upon the Closing), the representations and warranties contained herein shall survive the Closing and continue in effect (i) for breaches of Sections 4.3 (Capitalization); 4.4 and 5.1 (Authority Relative to this Agreement of the Company and Selling Shareholders, respectively); 4.12 (Taxes and Tax Payments); and 5.2 (Shares of the Company) without time limitation, and (ii) for all other representations and warranties for the period that ends upon the third anniversary of the Closing Date. (i) It is expressly understood and agreed that: (i) no Indemnified Party shall be entitled to seek indemnification for Damages with respect to the settlement of the Canadian Customs Matter (referred to in Section 7.13) to the extent it does not exceed $1,000,000; (ii) no Indemnified Party shall be entitled to seek indemnification for Damages with respect to the Roof Costs (referred to in Section 7.12) to the extent the Roof Costs do not exceed $2,300,000; and (iii) no Indemnified Party shall be entitled to seek indemnification for Damages with respect to any structural matters or other Indemnified Losses related to the roof on either of the XxXxxxxxx Building or the Forstmann Building to the extent of any recovery under any warranty issued in connection with the Roof Repairs (referred to in Section 7.12).

Indemnification Survival of Representations and Warranties. 9.1.1 From and after the Closing Date, Buyer and each of its Affiliates, officers, employees, directors and representatives (acollectively, the "Buyer Indemnitees") Subject to the terms shall be indemnified and conditions of held harmless by Seller, SDVAP, SDVE, SDC and Parent, jointly and severally, in accordance with this Section 7.9 and 7.10 and other than in respect of Environmental Damages for which indemnification shall be had9, if at all, exclusively pursuant to Section 7.14, the Selling Shareholders hereby agree to indemnify and save harmless Purchaser and its officers, directors, shareholders, employees and Affiliates from, against, for and in respect of any and all assessmentsDamages (as defined below) proximately incurred by any Buyer Indemnitee as a result of: (a) Any breach of any representation or warranty of Seller, penaltiesSDVAP, lossesSDVE, damagesSDC or Parent contained herein or in any agreement or instrument delivered at the Closing by Seller, liabilitiesSDVAP, costs and expense SDVE, SDC or Parent; (b) The breach of any covenant, agreement or obligation of Seller, SDVAP, SDVE, SDC or Parent contained in this Agreement or any other instrument (including court coststhe Covenant Not to Compete) contemplated by this Agreement; (c) Any and all Environmental Damages, amounts paid regardless of whether such Environmental Damages are incurred in settlementconnection with any item which has been disclosed to Buyer and regardless of whether such Environmental Damages are incurred as a result of a breach of the representations and warranties in this Agreement and regardless of whether resulting from a condition which is known or unknown by Seller, judgmentsSDVAP, reasonable attorneys' fees SDVE, SDC or other expenses for investigating and defending)Parent on the date hereof; (d) Any obligation of Seller or Parent under Section 2.2; (e) Any obligations or liabilities of the Business or Seller, suitSDVAP, actionSDVE, claimSDC or Parent not specifically assumed by Buyer pursuant to this Agreement, liability, obligation, including each liability or any Taxes obligation described in Section 7.10(a2.5; and (f) Except as specifically provided in Section 2.4, any obligations or liabilities relating to the conduct of the Business prior to the Closing Date, including any liability or obligation arising from any act, occurrence or event which occurs prior to the Closing Date and any liability or obligation arising from any products sold by the Business prior to the Closing Date. 9.1.2 From and after the Closing Date, Seller, SDVE, SDVAP, SDC and Parent and each of their respective Affiliates, officers, employees, directors and representatives (collectively, the "DAMAGESSeller Indemnitees") suffered, sustained, shall be indemnified and held harmless by Buyer in respect of any and all Damages reasonably and proximately incurred or required to be paid by Delta, the Purchaser, or any of their respective officers, directors, employees or Affiliates Seller Indemnitee as a direct result of the any misrepresentation and/or breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement or arising from any of the Selling Shareholders or the Company contained in or made pursuant to Assumed Liabilities. 9.1.3 For purposes of this Agreement; PROVIDED, HOWEVERthe term "Damages" means all demands, that there shall be no liability under this Section 7.9(aclaims, actions or causes of action, assessments, losses, damages, costs, expenses, liabilities, judgments, awards, fines, sanctions, penalties, charges and amounts paid in settlement, including (y) or Section 7.10(a) unless and until the aggregate of all Damages exceed seventy five thousand dollars ($75,000.00) and then recovery shall be had for each previously or subsequently incurred Damage. (b) Subject to the terms and conditions of this Section 7.9, Delta and Purchaser hereby agree to indemnify and save harmless the Selling Shareholders from, against, for and interest on cash disbursements in respect of any and all Damages suffered, sustained, incurred or required to be paid by any Selling Shareholder as a direct result of the breach of any representation, warranty, covenant or agreement of Purchaser or Delta contained in or made pursuant to this Agreement, PROVIDED that there shall be no liability of Delta or the Purchaser under this Agreement in excess of $2,250,000, other than for payment of the Purchase Price. (c) Any party seeking indemnification hereunder ("INDEMNIFIED PARTY") agrees to give prompt written notice to any indemnifying party (the "INDEMNIFYING PARTY") of any claim by foregoing at a third party that might reasonably be expected to give rise to a claim based on the indemnity agreements contained in Section 7.9(a) or Section 7.9(b) hereof, stating the nature and basis of said claim and the amount thereof, rate per annum equal to the extent knownprime rate as published by Bank of America, PROVIDEDNT&SA, HOWEVERcompounded quarterly, that from the failure later to occur of any Indemnified Party to give timely notice shall not affect its right to indemnification hereunder except to the extent that the Indemnifying Party demonstrates actual damage or prejudice caused by such failure. (di) In the event the Indemnified Party shall notify the Indemnifying Party of any third-party claim pursuant to subsection (c) hereof, the Indemnifying Party shall defend such claim (including all actions, suits or proceedings and all proceedings on appeal or for review that counsel deem appropriate) with counsel reasonably satisfactory to the Indemnified Party by written notice to the Indemnified Party within thirty (30) days after receipt from the date of demand for payment hereunder, or (ii) the date each such cash disbursement is made until the Person incurring the same shall have been indemnified in respect thereof and (z) reasonable costs, fees and expenses of attorneys (including allocation costs of in house counsel), experts, accountants, appraisers, consultants, witnesses, investigators and any other agents of such notice. The party defending such claim shall make available to the other party and its attorneys and accountants all books and records relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit or proceeding. The Indemnified Party shall not compromise such claim without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld). (e) In the event that an Indemnified Party shall seek indemnification hereunder with respect to any claims (other than by third parties), the Indemnified Party shall give the Indemnifying Party prompt written notice of such claim, stating the nature and basis of said claim and the amount thereof with specificity, to the extent known. Within thirty (30) days after receipt of such notice, the Indemnifying Party shall either pay the amount of such claim or set forth in writing any dispute with respect to such claim. If such party shall dispute such claim, no amounts shall be payable with respect to such claim until such dispute shall be resolved. (f) Except for fraud or breaches of the representations and warranties contained in Sections 4.3 (Capitalization); 4.4 and 5.1 (Authority Relative to this Agreement of the Company and Selling Shareholders, respectively); 4.12 (Taxes and Tax Payments) and 5.2 (Shares of the Company), for which liability shall neither terminate nor be limited, in no event shall the Company and the Selling Shareholders be liable for aggregate Damages exceeding the lesser of $5,500,000 and any lesser amount then held in the Indemnity Escrow. No Indemnified Party shall have a right to seek indemnification for Damages pursuant to this Section 7.9 or 7.10 at any time after the third anniversary of the date hereof, provided that any claims for indemnification made pursuant to and in accordance with this Section 7.9 or 7.10 that are unresolved at such date shall continue until resolved. (g) The parties hereto acknowledge and agree that the indemnification provided for in this Section 7.9 and in Section 7.10, subject to the limitations set forth herein, shall be the sole and exclusive remedy of the parties with respect to any matter arising from or related to this Agreement (other than for claims relating to fraud)Person. Notwithstanding the foregoing, nothing in this Agreement shall limit the ability of a party to seek specific performance or other equitable relief in connection with this Agreement. (h) Other than for any representations and warranties relating to the environmental condition of the Owned Real Property or the Leased Real Property, Regulated Substances, Environmental Permits, compliance with any applicable Environmental Laws, or any liabilities or any impact upon any of the Company's financial statements or books and records related to or arising in connection with any of the foregoing, including without limitation those made in Section 4.16 (all of which shall terminate upon the Closing), the representations and warranties contained herein shall survive the Closing and continue in effect (i) for breaches of Sections 4.3 (Capitalization); 4.4 and 5.1 (Authority Relative to this Agreement of the Company and Selling Shareholders, respectively); 4.12 (Taxes and Tax Payments); and 5.2 (Shares of the Company) without time limitation, and (ii) for all other representations and warranties for the period that ends upon the third anniversary of the Closing Date. (i) It is expressly understood and agreed that: (i) no Indemnified Party shall be entitled to seek indemnification for Damages with respect to Damages incurred by Buyer or Buyer Indemnitees that do not arise out of third party claims, the settlement term "Damages" shall not include punitive, special or consequential damages, except in the case of the Canadian Customs Matter (referred to fraud by Seller, SDVAP, SDVE, SDC or Parent, in Section 7.13) to the extent it does not exceed $1,000,000; (ii) no Indemnified Party shall be entitled to seek indemnification for Damages which case "Damages" may include punitive, special or consequential damages, and, with respect to the Roof Costs (referred to in Section 7.12) to the extent the Roof Costs Damages incurred by Seller or Seller Indemnitees that do not exceed $2,300,000; and (iii) no Indemnified Party arise out of third party claims, the term "Damages" shall be entitled to seek indemnification for Damages with respect to any structural matters not include punitive, special or other Indemnified Losses related to consequential damages, except in the roof on either case of the XxXxxxxxx Building fraud by Buyer, in which case "Damages" may include punitive, special or the Forstmann Building to the extent of any recovery under any warranty issued in connection with the Roof Repairs (referred to in Section 7.12)consequential damages.

Indemnification Survival of Representations and Warranties. (a1) Subject to In the terms event this Agreement is terminated for any reason, Acquiror and conditions each of this Section 7.9 its Affiliates, officers, employees, directors and 7.10 and other than in respect of Environmental Damages for which indemnification representatives (collectively, the "Acquiror Indemnitees") shall be hadindemnified and held harmless by the Company, if at allin accordance with this Article VII, exclusively pursuant to Section 7.14, the Selling Shareholders hereby agree to indemnify and save harmless Purchaser and its officers, directors, shareholders, employees and Affiliates from, against, for and in respect of any and all assessments, penalties, losses, damages, liabilities, costs and expense (including court costs, amounts paid in settlement, judgments, reasonable attorneys' fees or other expenses for investigating and defending), suit, action, claim, liability, obligation, or Damages incurred by any Taxes described in Section 7.10(a) (collectively, "DAMAGES") suffered, sustained, incurred or required to be paid by Delta, the Purchaser, or any of their respective officers, directors, employees or Affiliates Acquiror Indemnitee as a direct result of the any misrepresentation and/or breach of any representation, warranty, covenant or agreement of the Selling Shareholders or made by the Company contained in or made pursuant to this Agreement; PROVIDED. Upon the Closing, HOWEVER, that there the Company shall be no liability cease to have any Liability under this Section 7.9(a7.1(a)(1). To the extent that the Company shall incur any Liability to any Acquiror Indemnitee under this Section 7.1(a)(1) arising out of any such misrepresentation or Section 7.10(a) unless and until breach, the aggregate of all Damages exceed seventy five thousand dollars ($75,000.00) and then recovery Merger Price shall be had for each previously or subsequently reduced by the amount of Damages incurred Damageby the Acquiror Indemnitee as a result thereof. (b2) Subject to Effective upon the terms Closing, each Acquiror Indemnitee shall be indemnified and conditions of held harmless severally, but not jointly, by the Principal Shareholders, in accordance with this Section 7.9Article VII, Delta and Purchaser hereby agree to indemnify and save harmless the Selling Shareholders from, against, for and in respect of its "pro-rata share" of any and all Damages suffered, sustained, incurred or required to be paid by any Selling Shareholder Acquiror Indemnitee as a direct result of the any misrepresentation and/or breach of any representation, warranty, covenant or agreement of Purchaser or Delta contained made by the Company in or made pursuant to this Agreement; provided, PROVIDED that there however, each Principal Shareholder shall be fully liable (and no liability of Delta such proportionate basis limitation shall apply) with respect to the representations and warranties in Section 2A to the extent such representations or warranties relate to such Principal Shareholder or the Purchaser under Company Capital Stock held by such Shareholder (provided that no Shareholder shall be liable for the representations and warranties of any other Shareholder in such Section). For purposes of this Agreement Section 7.1(a)(2), a Principal Shareholder's "pro-rata share" of Damages shall be a fraction, expressed as a percentage, where the numerator is equal to the number of shares of Company Capital Stock owned by such Principal Shareholder and the denominator is equal to the number of shares of Company Capital Stock owned by all Principal Shareholders. From and after the Effective Time, the Principal Shareholders shall have no rights of contribution or otherwise from the Company (or Acquiror as the successor to the Company) with respect to any indemnification obligations such shareholders may have. (b) From and after the Effective Time, the Company's shareholders and each of their Affiliates, officers, employees, directors and representatives (collectively, the "Company Indemnitees") shall be indemnified and held harmless by Acquiror in excess respect of $2,250,000any and all Damages incurred by any Company Indemnitee as a result of any misrepresentation and/or breach of any representation, other than for payment of the Purchase Pricewarranty, covenant or agreement made by Acquiror in this Agreement. (c) Any party seeking indemnification hereunder ("INDEMNIFIED PARTY") agrees to give prompt written notice to any indemnifying party (the "INDEMNIFYING PARTY") of any claim by a third party that might reasonably be expected to give rise to a claim based on the indemnity agreements contained in Section 7.9(a) or Section 7.9(b) hereof, stating the nature and basis of said claim and the amount thereof, to the extent known, PROVIDED, HOWEVER, that the failure of any Indemnified Party to give timely notice shall not affect its right to indemnification hereunder except to the extent that the Indemnifying Party demonstrates actual damage or prejudice caused by such failure. (d) In the event the Indemnified Party shall notify the Indemnifying Party of any third-party claim pursuant to subsection (c) hereof, the Indemnifying Party shall defend such claim (including all actions, suits or proceedings and all proceedings on appeal or for review that counsel deem appropriate) with counsel reasonably satisfactory to the Indemnified Party by written notice to the Indemnified Party within thirty (30) days after receipt of such notice. The party defending such claim shall make available to the other party and its attorneys and accountants all books and records relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit or proceeding. The Indemnified Party shall not compromise such claim without the written consent All of the Indemnifying Party (which consent shall not be unreasonably withheld). (e) In the event that an Indemnified Party shall seek indemnification hereunder with respect to any claims (other than by third parties)covenants, the Indemnified Party shall give the Indemnifying Party prompt written notice of such claim, stating the nature and basis of said claim and the amount thereof with specificity, to the extent known. Within thirty (30) days after receipt of such notice, the Indemnifying Party shall either pay the amount of such claim or set forth in writing any dispute with respect to such claim. If such party shall dispute such claim, no amounts shall be payable with respect to such claim until such dispute shall be resolved. (f) Except for fraud or breaches of the representations and warranties contained in Sections 4.3 (Capitalization); 4.4 and 5.1 (Authority Relative to this Agreement of the Company and Selling Shareholders, respectively); 4.12 (Taxes and Tax Payments) and 5.2 (Shares of the Company), for which liability shall neither terminate nor be limited, in no event shall the Company and the Selling Shareholders be liable for aggregate Damages exceeding the lesser of $5,500,000 and any lesser amount then held in the Indemnity Escrow. No Indemnified Party shall have a right to seek indemnification for Damages pursuant to this Section 7.9 or 7.10 at any time after the third anniversary of the date hereof, provided that any claims for indemnification made pursuant to and in accordance with this Section 7.9 or 7.10 that are unresolved at such date shall continue until resolved. (g) The parties hereto acknowledge and agree that the indemnification provided for in this Section 7.9 and in Section 7.10, subject to the limitations set forth herein, shall be the sole and exclusive remedy of the parties with respect to any matter arising from or related to this Agreement (other than for claims relating to fraud). Notwithstanding the foregoing, nothing in this Agreement shall limit survive the ability of a party to seek specific performance or other equitable relief in connection with this Agreement. (h) Other than for any representations Merger and warranties relating to continue until 5:00 p.m., Georgia time, on the environmental condition earlier of the Owned Real Property or date that is six months following the Leased Real Property, Regulated Substances, Environmental Permits, compliance with any applicable Environmental LawsClosing Date (the "Expiration Date"), or any liabilities or any impact upon any of the Company's financial statements or books and records related to or arising in connection with any of the foregoing, including without limitation those made in Section 4.16 (all of which shall terminate upon the Closing), the representations and warranties contained herein shall survive the Closing and continue in effect (i) for breaches of Sections 4.3 (Capitalization); 4.4 and 5.1 (Authority Relative to this Agreement of the Company and Selling Shareholders, respectively); 4.12 (Taxes and Tax Payments); and 5.2 (Shares of the Company) without time limitation, and (ii) for all other representations and warranties for the period that ends upon the third anniversary of the Closing Date. (i) It is expressly understood and agreed that: (i) no Indemnified Party shall be entitled to seek indemnification for Damages with respect to the settlement of the Canadian Customs Matter (referred to in Section 7.13) to the extent it does not exceed $1,000,000; (ii) no Indemnified Party shall be entitled to seek indemnification for Damages with respect to the Roof Costs (referred to in Section 7.12) to the extent the Roof Costs do not exceed $2,300,000; and (iii) no Indemnified Party shall be entitled to seek indemnification for Damages with respect to any structural matters or other Indemnified Losses related to the roof on either of the XxXxxxxxx Building or the Forstmann Building to the extent of any recovery under any warranty issued in connection with the Roof Repairs (referred to in Section 7.12).specifically